National Security Whistleblowers
Released: 2005-12-30T00:00:00

Introduction

Agency whistleblowers operate within a system of mixed messages. On the one hand, theCode of Ethics adopted by Congress in 1958 directs all government employees to "expose corruptionwherever discovered." (1) Over the years, agency employees have received credit for revealing problems of defense costoverruns, unsafe nuclear power plant conditions, questionable drugs approved for marketing,contract illegalities and improprieties, and regulatory corruption. (2) On the other hand, exposingcorruption can result in their being fired, transferred, reprimanded, denied promotion, or harassed. In 1978, a Senate panel found that the fear of reprisal "renders intra-agency communications a sham,and compromises not only the employee, management, and the Code of Ethics, but also theConstitutional function of congressional oversight itself." (3)

Enacting statutory rights for whistleblowers and establishing new executive agencies toprotect those rights has not produced the protections that some expected. As explained in this report,the Office of Special Counsel, the Merit Systems Protection Board, and the Federal Circuit -- theagencies created by Congress to safeguard the rights of whistle blowers -- have not in many casesprovided the anticipated protections to federal employees. National security whistleblowers wereexempted from the Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989. Some protections are available in statutes passed in recent years, including the IntelligenceCommunity Whistleblower Protection Act of 1998. Individual Members and congressionalcommittees have attempted to provide long-term protections to whistleblowers, enabling them toprovide the kinds of agency information that Congress wants without costs and injuries to theirgovernment careers.

The purpose of this report is to explore the statutory and political protections available tonational security whistleblowers. First, an examination of the Civil Service Reform Act and theWhistleblower Protection Act will explain why national security whistleblowers were excluded fromthe protections provided in those statutes. Second, to the extent that those statutes are consideredmodels to protect national security whistleblowers, the experience of the Office of Special Counsel,the Merit Systems Protection Board, and the Federal Circuit is relevant in evaluating protections fornational security whistleblowers.

Whistleblower activity is often viewed as a struggle between the executive and legislativebranches. Presidents may decide to centralize control of agency information by requiring the agencyhead to approve the release of any information. Members of Congress regularly express a need toobtain information from employees within the agency, without seeking the approval of the agencyhead. This conflict between the branches is seen in the issuance of executive orders by PresidentsTheodore Roosevelt and William Howard Taft in 1902 and 1909 and the resulting legislation -- theLloyd-LaFollette Act of 1912 -- adopted by Congress to maintain access to agency information. Theconstitutionality of the Lloyd-LaFollette Act continues to be challenged today by the JusticeDepartment.

"Gag Orders" and Lloyd-LaFollette

Both Presidents Theodore Roosevelt and William Howard Taft threatened to fire agencyemployees who attempted to contact Congress. Employees were ordered to communicate onlythrough the head of their agency. Congress responded by passing legislation intended to nullify thatpolicy and allow employees to contact lawmakers, committees, and legislative staff.

The "Gag Orders"

President Theodore Roosevelt issued an order in 1902 to prohibit employees of executivedepartments from seeking to influence legislation "individually or through associations" exceptthrough the heads of the departments. Failure to abide by this presidential order could result indismissal from federal service. The order read:

All officers and employees of the United States of everydescription, serving in or under any of the executive departments or independent Governmentestablishments, and whether so serving in or out of Washington, are hereby forbidden, either directlyor indirectly, individually or through associations, to solicit an increase of pay or to influence orattempt to influence in their own interest any other legislation whatever, either before Congress orits committees, or in any way save through the heads of the departments or independent Governmentestablishments in or under which they serve, on penalty of dismissal from the Governmentservice. (4)

In 1909, President William Howard Taft prepared a similar order, this one forbidding anybureau chief or any subordinate in an agency from going directly to Congress concerning legislation,appropriations, or congressional action of any kind without the consent and knowledge of thedepartment head. Here is the language:

It is hereby ordered that no bureau, office, or divisionchief, or subordinate in any department of the Government, and no officer of the Army or Navy orMarine Corps stationed in Washington, shall apply to either House of Congress, or to any committeeof either House of Congress, or to any Member of Congress, for legislation, or for appropriations,or for congressional action of any kind, except with the consent and knowledge of the head of thedepartment; nor shall any such person respond to any request for information from either House ofCongress, or any committee of either House of Congress, or any Member of Congress, exceptthrough, or as authorized by, the head of his department. (5)

Lloyd-LaFollette Act

Through language added to an appropriations bill in 1912, Congress rejected thesepresidential orders. Congressional debate emphasized the concerns of lawmakers that the orders,left unchecked, would put congressional committees in the position of hearing "only one side of acase": the views of Cabinet officials. Lawmakers wanted to hear from the rank-and-file membersof a department, who could disclose what departments did not want communicated. Some Membersof Congress argued that they would not place the welfare of citizens "in the hands and at the mercyof the whims of any single individual, whether he is a Cabinet officer or anyone else." (6) They insisted on access toagency employees and their complaints and observations about the conduct of their supervisors. (7) Legislative language wasdrafted to ensure that agency employees could exercise their constitutional rights to free speech, topeaceable assembly, and to petition the government for redress of grievances. (8)

During House debate, some legislators objected to the presidential orders as an effort byPresidents to prevent Congress "from learning the actual conditions that surrounded the employeesof the service." (9) If agencyemployees were required to speak only through the heads of the departments, "there is no possibleway of obtaining information excepting through the Cabinet officers, and if these officials desire towithhold information and suppress the truth or to conceal their official acts it is within their powerto do so." (10) If noagency employee was allowed to speak directly to Congress and could communicate only throughthe department and eventually the Cabinet officer, "then this is an aristocratic Government,dominated completely by the official family of the President." (11) Another legislatorremarked: "The vast army of Government employees have signed no agreement upon entering theservice of the Government to give up the boasted liberty of the American citizens." (12)

Those themes also emerged during Senate debate. One Senator said "it will not do forCongress to permit the executive branch of this Government to deny to it the sources of informationwhich ought to be free and open to it, and such an order as this, it seems to me, belongs in someother country than the United States." (13) The language used to counter the presidential orders was addedas Section 6 to the Postal Service Appropriations Act of 1912. (14) Section 6, known as theLloyd-LaFollette Act, provides for procedural safeguards to protect agency officials from arbitrarydismissals when they attempt to communicate with Congress. The final sentence of Section 6 reads:"The right of persons employed in the civil service of the United States, either individually orcollectively, to petition Congress, or any Member thereof, or to furnish information to either Houseof Congress, or to any committee or member thereof, shall not be denied or interfered with."

Section 6 was later carried forward and supplemented by the Civil Service Reform Act of1978 and is codified as permanent law. (15) The conference report on the 1978 statute explained whyCongress depends on agency employees to disclose information directly to the legislative branch. The Civil Service Reform Act placed limitations on the kinds of information an employee maypublicly disclose without suffering reprisal, but the conference report stated that there was "no intentto limit the information an employee may provide to Congress or to authorize reprisal against anemployee for providing information to Congress." Nothing in the statute was to be construed "aslimiting in any way the rights of employees to communicate with or testify before Congress." (16)

As codified in 1978, the "right of employees, individually or collectively," to petitionCongress becomes an enforceable right, and other prohibited personnel practices are identified. (17) The U.S. Code nowprovides that various qualifications to the provision on prohibited personnel practices "shall not beconstrued to authorize the withholding of information from the Congress or the taking of anypersonnel action against an employee who discloses information to the Congress." (18)

Civil Service Reform Act of 1978

Congress passed legislation in 1978 to abolish the Civil Service Commission and create suchnew institutions as the Office of Personnel Management (OPM), the Merits Systems ProtectionBoard (MSPB), and the Office of Special Counsel (OSC). The statute was the first to establishprocedural protections for whistleblowers, but also recognized an exception for the national securityarea. Because of conflicting values in the legislation, however, whistleblowers never received theanticipated protections, and Congress took note of that a decade later when it passed theWhistleblower Protection Act of 1989. (19) This record is examined in subsequent sections on"Whistleblower Protections in Practice" and "Congressional Action, 1986-88." As explained in thisreport, the statutory safeguards in the Whistleblower Protection Act did not meet the expectationsof some lawmakers, agency employees, and private organizations.

Whistleblowers

The Civil Service Reform Act included the following as one of nine merit systems principles:"Employees should be protected against reprisal for the lawful disclosure of information which theemployees reasonably believe evidences (A) a violation of any law, rule, or regulation, or (B)mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific dangerto public health or safety." (20)

The Senate Committee on Governmental Affairs, in reporting the bill, remarked that "Often,the whistle blower's reward for dedication to the highest moral principles is harassment and abuse. Whistle blowers frequently encounter severe damage to their careers and substantial economic loss." Protecting these employees who disclose government illegality, waste, and corruption "is a majorstep toward a more effective civil service.... What is needed is a means to assure them that they willnot suffer if they help uncover and correct administrative abuses." (21) The House Committee onPost Office and Civil Service, in its report, said that the bill "prohibits reprisals against employeeswho divulge information to the press or the public (generally known as "whistleblowers") regardingviolations of law, agency mismanagement, or dangers to the public's health and safety." (22) The House committeetherefore anticipated that the whistleblower could report on wrongdoing not only through agencychannels but also to the press and the public. In supplemental views in this committee report,Representative Pat Schroeder linked whistleblower protection to the needs of legislative oversight:"If we in Congress are going to act as effective checks on excesses in the executive branch, we haveto hear about such matters." (23)

During floor debate, Senator Jim Sasser stated that "patriotic employees who bring examplesof official wrongdoing to the public's attention have, in the past, enjoyed no meaningful protectionagainst reprisals by their supervisors." He referred to "too many" examples of federal employeesfinding themselves "fired, transferred, or deprived of meaningful work simply because they werebrave enough to place the public interest ahead of their own personal career interest." He saw noreason why an employee "should have to risk his career and his family's financial stability forperforming a public service." (24)

Special Counsel

In recommending the Civil Service Reform Act, President Jimmy Carter proposed an Officeof Special Counsel "to investigate merit violations and to protect the so-called whistleblowers whoexpose gross management errors and abuses." (25) At a news conference, he looked to the Special Counsel to protect"those who are legitimate whistleblowers and who do point out violations of ethics, or those whothrough serious error hurt our country." (26) The House Committee on Post Office and Civil Service, inreporting the bill, said that the Special Counsel "will have broad authority to investigate, particularly'whistleblower' cases." (27)

The statute looked to the Special Counsel to protect the interests of whistleblowers. TheSpecial Counsel, appointed to a term of five years with the advice and consent of the Senate, wasdirected to "investigate allegations involving prohibited personnel practices and reprisals againstFederal employees for the lawful disclosure of certain information and may file complaints againstagency officials and employees who engage in such conduct." (28)

National Security Exception

As the Senate Committee on Governmental Affairs explained in reporting the Civil ServiceReform Act, it was not intended to protect whistleblowers "who disclose information which isclassified or prohibited by statute from disclosure." (29) It was the committee's understanding that "section 102(d)(3) ofthe National Security Act of 1947, which authorizes protection of national intelligence sources andmethods, has been held to be such a statute." (30)

The section on prohibited personnel practices in the Civil Service Reform Act covered allexecutive agencies but did not include "the Federal Bureau of Investigation [FBI], the CentralIntelligence Agency [CIA], the Defense Intelligence Agency [DIA], the National Security Agency[NSA], and, as determined by the President, any Executive agency or unit thereof the principalfunction of which is the conduct of foreign intelligence or counterintelligence activities." (31)

Prohibited personnel practices in the FBI were treated in another section of the statute. (32) During House debate,Representative Pat Schroeder argued that the FBI whistleblower protections were "necessitated, inpart, by the woeful history of this agency in terms of eliminating internal wrongdoing." She statedthat an FBI employee "is guaranteed protection if he or she follows the procedures set out." If theemployee decided to make public disclosures of the wrongdoing, "this statute does not serve asauthorization for the Bureau to take reprisals. The general policy of protecting whistleblowers runsto all Government instrumentalities." (33)

Such intelligence agencies as the CIA and the DIA were not specifically covered by the CivilService Reform Act. Moreover, a subsection on actions to be taken by authorized supervisoryemployees referred to the special category of confidential or secret information. Supervisors wereprohibited from taking or failing to take a personnel action with respect to any employee or applicantfor employment as a reprisal for a disclosure of information by an employee or applicant which they reasonably believed evidences (1) a violation of any law, rule, or regulation, or (2) mismanagement,a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health orsafety "if such disclosure is not specifically prohibited by law and if such information is notspecifically required by Executive order to be kept secret in the interest of national defense or theconduct of foreign affairs." (34) The language recognized the President's authority to designatecertain information as confidential or secret, excluding national security whistleblowers fromautomatic protection. However, Representative Schroeder argued that the Civil Service Reform Act"applies the merit system principles to all units of the Federal Government," and that "while specificenforcement provisions are not mandated for agencies like CIA and GAO, the legislation makes itclear that whistleblowers should be protected in these agencies." (35)

In the event the Special Counsel received from an agency employee foreign intelligence orcounterintelligence information, "the disclosure of which is specifically prohibited by law or byExecutive order," the statute directed the Special Counsel to transmit that information to the HousePermanent Select Committee on Intelligence and the Senate Select Committee on Intelligence. (36) The Special Counsel wasdirected to make available to the public a list of noncriminal matters referred to agency heads, but"shall take steps to ensure that any such public list does not contain any information the disclosureof which is prohibited by law or by Executive order requiring that information be kept secret in theinterest of national defense or the conduct of foreign affairs." (37)

Communications with Congress

The Senate Committee on Governmental Affairs added to the bill a provision to ensure thatnothing in the section on prohibited personnel practices "will authorize the withholding of anyinformation from Congress, or will sanction any personnel action against an employee who disclosesany information to a Member of Congress or its staff, either in public session or through privatecommunications." Moreover, nothing in the bill was to be construed "as limiting in any way therights of employees to communicate with or testify before Congress, such as is provided in 5 U.S.C.7102 (right to furnish information protected), or in 18 U.S.C. 1505 (right to testify protected)." (38)

The conference report, in adopting the Senate provision, explained that it "is intended tomake clear that by placing limitations on the kinds of information any employee may publiclydisclose without suffering reprisal, there is no intent to limit the information an employee mayprovide to Congress or to authorize reprisal against an employee for providing information toCongress." As further explanation:

For example, 18 U.S.C. 1905 prohibits public disclosureof information involving trade secrets. That statute does not apply to transmittal of such informationby an agency to Congress. Section 2302(b)(8) of this act would not protect an employee againstreprisal for public disclosure of such statutorily protected information, but it is not to be inferred thatan employee is similarly unprotected if such disclosure is made to the appropriate unit of theCongress. Neither title I nor any other provision of the act should be construed as limiting in anyway the rights of employees to communicate with or testify before Congress. (39)

As enacted, the subsection of prohibited personnel practices states that it "shall not beconstrued to authorize the withholding of information from the Congress or the taking of anypersonnel action against an employee who discloses information to the Congress." (40)

Inspectors General

In the same year that Congress passed the Civil Service Reform Act, it completed action onlegislation to establish offices of inspectors general in twelve executive agencies. More inspectorsgeneral would be created in subsequent statutes. The purpose was to create independent offices "toconduct and supervise audits and investigations relating to programs and operations" in theseagencies. (41) Theseoffices were expected "to prevent and detect fraud and abuse in, such programs and operations." (42)

Inspectors general were authorized to receive and investigate complaints or informationreceived from agency employees concerning the "possible existence of an activity constituting aviolation of law, rules, or regulations, or mismanagement, gross waste of funds, abuse of authorityor a substantial and specific danger to the public health and safety." (43) Supervisors wereprohibited from taking or threatening to take "any action against any employee as a reprisal formaking a complaint or disclosing information to an inspector general, unless the complaint was madeor the information disclosed with the knowledge that it was false or with willful disregard for itstruth or falsity." (44)

In reporting the section on employee complaints, the Senate Committee on GovernmentalAffairs remarked: "Because of the employee's position within the agency, employee complaints carrywith them a high likelihood of reliability." Given the difficulty of "blowing the whistle" on one'ssupervisors or colleagues, "the situation may often be serious." The committee believed that "mostemployees would much prefer an effective channel inside the agency to pursue complaints ratherthan seeking recourse or publicity outside the agency. This preference should be encouraged." (45)

The legislative history of the Civil Service Reform Act anticipated that federal agencywhistleblowers would report wrongdoing not only to their supervisors but to Congress, the public,and the press. In contrast, the inspectors general statute of 1978 authorized a set of procedures thatwere entirely in-house. The IGs were directed to keep Congress "fully and currently informed aboutproblems and deficiencies relating to the administration of such programs and operations and thenecessity for and progress of corrective action." (46) Inspectors general would furnish semiannual reports to agencyheads, who would transmit the reports without change to appropriate committees and subcommitteesof Congress. (47)

Defense Department IG

In 1982, Congress created an inspector general in the Defense Department, authorized todirect audits and investigations that require access to information concerning (1) sensitiveoperational plans, (2) intelligence matters, (3) counterintelligence matters, (4) ongoing criminalinvestigations by other administrative units of the Defense Department related to national security,and (5) "other matters the disclosure of which would constitute a serious threat to nationalsecurity." (48) The IGwould serve as the principal adviser to the Secretary of Defense "for matters relating to theprevention and detection of fraud, waste, and abuse in the programs and operations of theDepartment." (49)

The IG statute provided that nothing in the section "shall be construed to authorize the publicdisclosure of information which is (A) specifically prohibited from disclosure by any other provisionof law; (B) specifically required by Executive order to be protected from disclosure in the interestof national defense or national security or in the conduct of foreign affairs; or (C) a part of anongoing criminal investigation." However, nothing in that section or in any other provision of thestatute "shall be construed to authorize or permit the withholding of information from the Congress,or from any committee or subcommittee thereof." (50)

A Statutory IG for the CIA

The Central Intelligence Agency had an Office of Inspector General, but it was not statutory. Beginning in 1952, the CIA administratively established the position of IG. (51) The limitations of thatoffice were underscored by the Iran-Contra affair, which became public in November 1986 andhighlighted the extent to which the CIA and other executive agencies had failed to comply withstatutory restrictions and had not testified fully and accurately to congressional committees aboutcovert operations. (52) One of the recommendations by the House and Senate Iran-Contra Committees in November 1987was the creation of an independent statutory IG confirmed by the Senate. The committees concludedthat the existing Office of Inspector General in the CIA "appears not to have had the manpower,resources or tenacity to acquire key facts uncovered by other investigations." (53)

During hearings on March 1, 1988, by the Senate Intelligence Committee, Senator ArlenSpecter reviewed some of the misleading testimony that Congress had received about the Iran-Contraaffair, including testimony from the CIA. (54) The next year, Congress established an inspector general for theCIA, "appropriately accountable to Congress" and designed to "promote economy, efficiency, andeffectiveness in the administration of such programs and operations, and detect fraud and abuse insuch programs and operations." (55) The IG would provide a means of keeping the Director of theCIA "fully and currently informed about problems and deficiencies relating to the administration ofsuch programs and operations, and the necessity for and the progress of corrective action," and wouldensure that the House and Senate Intelligence Committees "are kept similarly informed of significantproblems and deficiencies as well as the necessity for and the progress of corrective actions." (56)

The IG reports directly to and is under the general supervision of the director, who mayprohibit the IG "from initiating, carrying out, or completing any audit, inspection, or investigationif the Director determines that such prohibition is necessary to protect vital national security interestsof the United States." In exercising that power, the director shall submit "an appropriately classifiedstatement of the reasons for the exercise of such power within seven days to the intelligencecommittees." (57)

The creation of the IG also included a whistleblower provision. The IG would receive andinvestigate "complaints or information from an employee of the Agency concerning the existenceof an activity constituting a violation of laws, rules, or regulations, or mismanagement, gross wasteof funds, abuse of authority, or a substantial and specific danger to the public health and safety." Noaction constituting a reprisal, or threat of reprisal, for making such complaint may be taken by anyAgency employee in a position to take such actions, "unless the complaint was made or theinformation was disclosed with the knowledge that it was false or with willful disregard for its truthor falsity." (58) Additional procedures for CIA whistleblowing would be enacted in 1998, discussed later in thereport.

Creating the Federal Circuit

Under the Civil Service Reform Act, any employee or applicant for employment adverselyaffected or aggrieved by a final order or decision of the MSPB could obtain judicial review in anyof the federal appellate courts. (59) In 1982, Congress created a new appellate court by consolidatingthe existing U.S. Court of Customs and Patent Appeals with the appellate division of the existingU.S. Court of Claims. Congress gave the new U.S. Court of Appeals for the Federal Circuitexclusive jurisdiction over any final order or final decision of the MSPB. (60)

Whistleblower Protections in Practice

For a number of reasons, the whistleblower protections promised in the Civil Service ReformAct failed to materialize. In signing the bill, President Carter said that "it prevents discouraging orpunishing [federal employees] for the wrong reasons, for whistleblowing or for personal whim inviolation of basic employee rights." (61) At the signing ceremony, Representative Morris Udall, whomanaged the bill on the House side, cautioned that "reform has consequences that you don't likesometimes, but the best reforms aren't going to work unless people make them work." (62)

Competing Priorities

Part of the gap between promise and practice with regard to whistleblower protectionsresulted from the complex and in some ways conflicting values placed in the statute. Although itexpressly stated its intention to protect whistleblowers, a dominant purpose behind the statute wasto make it easier to hold federal employees accountable for their performance. In announcing theAdministration's civil service reform proposals, President Carter noted "a widespread criticism ofFederal Government performance. The public suspects that there are too many Government workers,that they are underworked, overpaid, and insulated from the consequences of incompetence." (63) Although he immediatelydismissed such "sweeping criticisms" as "unfair," much of the impetus behind civil service reformwas driven by the belief that managers needed greater discretion in demoting and removingunder-performing employees. In this same address, President Carter referred to the "sad fact" thatit is "easier to promote and to transfer incompetent employees than it is to get rid of them." (64)

Making it Easier to Punish

In reporting the bill, the Senate Committee on Governmental Affairs referred to conditionsin federal agencies that made them "too often ... the refuge of the incompetent employee." (65) An employee "has no rightto be incompetent." (66) One of the "central tasks" of the bill was "simple to express but difficult to achieve: Allow civilservants to be able to be hired and fired more easily, but for the right reasons." (67)

Senator Abraham Ribicoff, chairman of the committee that reported the bill, listed twopurposes of the legislation without indicating any tension between them. The bill provided "newprotection for whistleblowers who disclose illegal or improper Government conduct" while at thesame time it "streamline[d] the processes for dismissing and disciplining Federal employees." (68) He explained that the bill"lowered the standard of evidence needed to uphold the dismissal of an employee who has been firedfor poor performance." Instead of a supervisor proving by a "preponderance of evidence" that anemployee's performance had not been "up to par," the conferees adopted the "substantial evidence"test to give supervisors greater deference in assessing the work of an employee. (69) Ironically, if a supervisorfound a whistleblower's charges to reflect on poor management within the agency, or if awhistleblower threatened to release information embarrassing to the supervisor, it might now beeasier to sanction or remove the whistleblower.

1985 House Hearings

One of the early statements by President Ronald Reagan urged whistleblowers to comeforward: "Federal employees or private citizens who wish to report incidents of illegal or wastefulactivities are not only encouraged to do so but will be guaranteed confidentiality and protectedagainst reprisals." The "vital element" in fighting fraud and waste "is the willingness of employeesto come forward when they see this sort of activity." Employees "must be assured that when they'blow the whistle' they will be protected and their information properly investigated." He wanted tomake it clear that "this administration is providing that assurance to every potential whistleblowerin the Federal Government." (70)

As presiding officer of House hearings on June 26, 1985, Representative Pat Schroeder heardcontrary testimony from a variety of government officials, federal employees, and privateorganizations on the implementation of the whistleblower provisions in the Civil Service ReformAct. She concluded: "There is no dispute -- whistleblowers have no protection. We urge them tocome forward, we hail them as the salvation of our budget trauma, and we promise them their placein heaven. But we let them be eaten alive." (71) Much of the focus of the hearings fell on the performance of theSpecial Counsel.

Office of the Special Counsel

K. William O'Connor, Special Counsel of the MSPB, testified that his office "has only oneclient; it is the enforcement of the merit systems and the laws that carry it into effect." (72) The commitment toprotect "bona fide whistleblowers" would be done by "protection of the merit systems, the meansdesigned by Congress to that end and the end that the OSC is charged with effecting." (73) Federal employees whobring charges of agency wrongdoing "are not the clients of this office; the system is." (74) Although some witnessesfrom the Schroeder subcommittee argued that the OSC was principally established to "protectwhistleblowers," O'Connor testified that "protection of whistle blowers -- even the word whistleblower -- does not appear in the code at all. What is required by the statute is the protection of theMerit System...." (75)

Elsewhere O'Connor recognized the duties of his office with whistleblowers. In identifyingthe three primary statutory functions of the OSC, he listed this one first: "To provide a securechannel through which disclosures of waste, fraud, inefficiency or hazards to public health or safetymay be received and referred while providing anonymity to the discloser." (76) He also described anumber of recent improvements in the operations of OSC, including "[a]n effective outreachprogram . . . developed and maintained to apprise whistleblowers of the responsibilities of andprotection afforded by this office." (77) He pledged to "continue to use the statutory powers of this officeto protect bona fide whistleblowers from prohibited retaliation for their protected disclosures byenforcing the law. That is, by prosecuting anyone who takes reprisal against them because of theirprotected disclosures, and by invoking appropriate agency corrective actions." (78)

O'Connor described how he would handle an employee who had been sanctioned by anagency, even though the employee had been involved in protected whistleblower activities:

If an agency sanction was proper because of anemployee's incompetence or misconduct, even though the motivation of the deciding or proposingofficial was contaminated by a de minimus vindictiveness or desire for retaliation and reprisal forprotected conduct, the sanction against the employee will probably stand. The reprisal orientedofficial, however, may be prosecuted by my office and may be disciplined by the Board if theimproper motivation of the conduct is not de minimus. This, it seems to me, is a proper and worthyresult.

It is not in the public interest to employ, retain or cossetdrones, incompetents, disruptors of the workplace, malefactors, or those whose conduct is in otherunlawful ways inappropriate to the execution of the mission of the organization, even though theperson is also an individual who has engaged in specifically protected conduct like whistleblowing. The public interest is, after all, the execution of the public business; it is not a maintenance programfor the incompetent, nor is it in the public interest to foster internal dissidence, vituperation,backbiting and disaffection. (79)

Representative Schroeder referred to some 11,000 federal employees who had contacted theOffice of Special Counsel for relief. O'Connor acknowledged that these individuals had a complaintand thought they had a case, but added: "there are many people who feel that they have complaints,and some of them are carrying bags and walking up and down Constitution Avenue right now, I haveno doubt." (80) WhenRepresentative Schroeder pointed out that the women carrying bags up and down the avenue are noton the federal payroll, O'Connor agreed. The point he wanted to make, he said, was that few of the11,000 complaints were within the scope of responsibilities handled by his office. (81)

Earlier O'Connor had offered his "firm belief" that most federal managers follow the law andhave integrity, whereas "most whistleblowers are malcontents." (82) In a newspaper articlepublished on July 17, 1984, O'Connor was asked what advice he would give, as a private attorney,to a potential whistleblower. His reply: "I'd say that unless you're in a position to retire or areindependently wealthy, don't do it. Don't put your head up, because it will get blown off." (83)

Congressional Action, 1986-1988

On February 20 and 21, 1986, a subcommittee of the House Post Office and Civil ServiceCommittee held additional hearings on whistleblower protections. The testimony showed a widegap between the perceptions of lawmakers and executive officials. As chair of the subcommittee,Representative Schroeder spoke of a "general consensus" that the whistleblower protections in theCivil Service Reform Act "must be changed if we are to treat Federal employees fairly and providerelief for victims of prohibited personnel practices." (84) Special Counsel O'Connor testified against the need to pass abill, introduced in the House, designed to strengthen whistleblower protections: "The bill is flawedconceptually, as well, from inception, for it proceeds upon the false premise that proper lawenforcement systems now in effect do not work to protect bona fide whistleblowers. The fact is that, now , the statutory protection works. I oppose the bill." (85) Stuart E. Schiffer, Deputy Assistant Attorney General, alsotestified against the bill. When asked whether he believed the existing statutory system wasadequate, he replied: "Yes; I do." Asked again whether there was adequate protection forwhistleblowers, he again answered: "Yes; I do." (86)

Proposed Legislation in 1986

The House Post Office and Civil Service Committee reported a whistleblower protection acton September 22, 1986. The purpose was to "strengthen and improve protections for the rights ofFederal employees by clarifying the role of the Office of Special Counsel (OSC) and emphasizingthat its primary responsibility is to represent individuals who are victims of prohibited personnelpractices; by providing Federal employees with a private right of action as an alternative to pursuingcases through the OSC; by permitting the Special Counsel to seek judicial review of MSPB decisionsto which the Special Counsel was a party; by protecting the identity of Federal employees who makedisclosures; by lessening the standard of proof needed to prove reprisal in the case of whistleblowerdisclosures"; and other objectives. (87) The House Subcommittee on Civil Service had been "unable tofind a single individual who has gone to the Office of Special Counsel since 1981 who has beensatisfied with the investigation of his or her case." (88)

Action in 1988

Congress did not act on the 1986 legislation, but the House Committee on Post Office andCivil Service reported the bill again in the 100th Congress. The report referred to the results of astudy by Dr. Donald R. Soeken who concluded that "most whistleblowers were not protected, andin fact, they suffered cruel and disastrous retaliation for their efforts.... It seems to me that theprotection has also been a cruel hoax. We ask people to act out of conscience and then we ignoretheir cries for protection. We allow their careers to be destroyed and watch as the lives of thewhistleblowers and their families suffer under the strain." (89) Mary Lawton, Special Counsel in 1987, testified that "to theextent that there may have been a lack of emphasis on the corrective action authority of the [OSC]office, I have called for an emphasis." (90)

The Senate Committee on Governmental Affairs reported whistleblower protectionlegislation on July 6, 1988. (91) The committee described the results of a 1984 report preparedby the MSPB, "Blowing the Whistle in the Federal Government." It estimated that a largepercentage of federal employees (69%-70%) knew of fraud, waste and abuse but chose not to reportit. Moreover, the percentage of employees who did not report government wrongdoing because offear of reprisal rose from an estimated 20% in 1980 to 37% in 1983. (92)

In reviewing the board's report, the committee agreed that "statutory protections, alone,cannot guarantee the elimination of reprisal among civil servants. Agency heads and supervisorsmust foster an environment where employees are encouraged to come forward with suggestions andreport problems and are appropriately rewarded, rather than punished, for doing so." The statisticsincluded in the board's report "show that Congress' specific statutory efforts to protectwhistleblowers thus far have had no observable impact on encouraging federal employees to blowthe whistle." (93)

The Mt. Healthy Test

The committee explained why whistleblowers were vulnerable to reprisal. Even if anemployee was successful in proving a connection between a whistleblowing activity and a reprisal,the agency had an opportunity to show that it would have taken the personnel action even if theemployee had not engaged in protected conduct. This type of agency defense had been developedby the Supreme Court in Mt. Healthy City School District Board of Education v. Doyle , 429 U.S.274 (1977) and later had been applied by the MSPB and the courts in reprisal cases. The committeefound that the Mt. Healthy test allowed an agency "to search an employee's work record for conductthat can be cited as the reason for taking an adverse action. It has proved to be difficult foremployees to refute the agency's contention that it would have taken the personnel actionanyway." (94)

To overcome this problem, the committee proposed that the Mt. Healthy test be modifiedonly for whistleblower reprisal cases. Once an employee had made a prima facie case of reprisal byshowing that whistleblowing was a factor in a personnel action, the agency would be required toshow by "clear and convincing evidence" that the whistleblowing was not a "material factor" in thepersonnel action. "Clear and convincing evidence" is less than the criminal standard of "beyond areasonable doubt" but higher than "preponderance of the evidence," which was the current standardfor this type of employee case. (95)

The Whistleblowing Protection Act of 1988 passed the Senate and the House. Section 2(b)of the Senate bill stated the "primary role" of the OSC was to "protect employees, especiallywhistleblowers, from prohibited personnel practices," and that the OSC "shall act in the interests ofemployees who seek assistance from the [OSC] and not contrary to such interests." (96) The bill passed the Senateby voice vote on August 2, 1988. (97) The House took up the Senate bill on October 3. Because the100th Congress was about to end, the House skipped conference and worked out a compromiseversion of the bill with the Senate. (98) A letter of October 3 to Representative Schroeder from JosephR. Wright, Jr., Deputy Director of the Office of Management and Budget, indicated that the twobranches were in agreement on the bill. There was no threat of a veto. (99) The bill passed the House,418 to zero. (100) TheSenate agreed to the House changes on October 7. (101) Congress adjourned sine die on October 22.

Pocket Veto

President Reagan pocket vetoed the bill on October 26. He stated that reporting of"mismanagement and violations of the law, often called whistleblowing, contributes to efficient useof taxpayers' dollars and effective government. Such reporting is to be encouraged, and those whomake the reports must be protected." (102) However, he also said it was necessary to "ensure that headsof departments and agencies can manage their personnel effectively." It was his concern that the billwould have changed the law "so that employees who are not genuine whistleblowers couldmanipulate the process to their advantage simply to delay or avoid appropriate adverse personnelactions." (103) Heobjected particularly to the "clear and convincing evidence" test, holding that it "essentially rigs theBoard's process against agency personnel managers in favor of employees. The interests of bothemployees and managers should be fully protected." (104)

The pocket veto memorandum also objected to restrictions placed on the power of thePresident to remove the Special Counsel. (105) The Civil Service Reform Act provided that the SpecialCounsel "may be removed by the President only for inefficiency, neglect of duty, or malfeasance inoffice." (106) Section1211(b) of the bill passed by Congress in 1988 contained the same language. (107)

President Reagan also objected to a provision that authorized the Special Counsel to obtainjudicial review of most MSPB decisions in proceedings to which the Special Counsel was a party. Implementation of that provision "would place two Executive branch agencies before a Federal courtto resolve a dispute between them. The litigation of intra-Executive branch disputes conflicts withthe constitutional grant of the Executive power to the President, which includes the authority tosupervise and resolve disputes between his subordinates." (108)

Whistleblower Protection Act of 1989

The vetoed whistleblower bill was modified in 1989 and passed the Senate on March 16 bya vote of 97 to zero. (109) The modified bill retained the language establishing that the"primary role" of the Special Counsel "is to protect employees, especially whistleblowers, fromprohibited personnel practices," and provided that the OSC "shall act in the interests of employeeswho seek assistance" from the office. The limitations on the President's power to remove the SpecialCounsel were retained, but no authority was granted to the Special Counsel to seek judicial reviewof an MSPB decision.

The "clear and convincing evidence" test remained. The bill modified the Mt. Healthy testto state that, "in cases involving allegations of reprisal for whistleblowing, an individual must provethat whistleblowing was a contributing factor in the agency's decision to take the action." (110) The burden is thenplaced on the agency to prove by clear and convincing evidence that the same personnel actionwould have been taken in the absence of the protected disclosure. Also, for the first time, the billgave whistleblowers the right to appeal their own cases to the MSPB if the Special Counsel failedor refused to do so. (111) The House passed the bill under suspension of the rules. (112)

In the Whistleblower Protection Act (WPA) of 1989, Congress found that federal employeeswho make protected disclosures "serve the public interest by assisting in the elimination of fraud,waste, abuse, and unnecessary Government expenditures." (113) Congress also foundthat protecting employees "who disclose Government illegality, waste, and corruption is a major steptoward a more effective civil service." Moreover, the WPA stated that Congress, in passing the CivilService Reform Act of 1978, "established the Office of Special Counsel to protect whistleblowers"who make protected disclosures. (114) The WPA incorporates the exemptions for national securityinformation included in the 1978 statute. (115) In signing the WPA, President George H. W. Bush said that"a true whistleblower is a public servant of the highest order.... [T]hese dedicated men and womenshould not be fired or rebuked or suffer financially for their honesty and good judgment." (116)

WPA Amendments in 1994

Congress passed legislation in 1994 to amend the Whistleblower Protection Act. Legislationwas needed to reauthorize the Office of Special Counsel and to ensure that it functioned "as intended,to protect federal employee whistleblowers from on-the-job harassment, negative job ratings,unfavorable transfers, denial of promotions and other retaliation for their efforts to uncover wasteand mismanagement in their agencies." (117)

In reporting the legislation, the Senate Committee on Governmental Affairs expressedconcern "about the extent to which OSC is aggressively acting to protect whistleblowers fromprohibited personnel practices." (118) On the House side, the Committee on Post Office and CivilService stated that "while the Whistleblower Protection Act is the strongest free speech law thatexists on paper, it has been a counterproductive disaster in practice. The WPA has created newreprisal victims at a far greater pace than it is protecting them." (119) The House committeeconcluded that statutory mandates could easily be thwarted by a hostile agency climate: "There islittle question that agency leadership is a far stronger factor than statutory provisions to establish aworkplace environment of respect for the merit system." (120)

MSPB and Federal Circuit

The House committee also found that the statistical record indicated that the MSPB and theFederal Circuit of Appeals "have not been favorable to Federal whistleblowers." In the first twoyears after enactment of the WPA, whistleblowers won approximately 20% of MSPB decisions onthe merits. From FY1991 to FY1994, that rate dropped to 5%; instead of providing a balance, theFederal Circuit "has been more hostile than the Board. Since its 1982 creation, in reported decisionsemployees have prevailed only twice on the merits with the whistleblower defense." The committeesaid it had received "extensive testimony at hearings that the MSPB and the Federal Circuit have lostcredibility with the practicing bar for civil service cases." (121) In November 1993,GAO released a report indicating that 81 percent of federal employees who sought whistleblowerreprisal protection from OSC gave the office a generally low to very low rating for overalleffectiveness. (122)

A more recent study indicates that whistleblowers continue to fare poorly in the MSPB andFederal Circuit. According to the Government Accountability Project, a nonprofit, whistlebloweradvocacy group, only two out of 30 whistleblowers prevailed on the merits before the MSPB from1999 to 2005, and only one whistleblower claim out of 96 prevailed on the merits before the FederalCircuit from 1995 to 2005. (123) Some, however, may view this as an indication that manywhistleblowers present weak cases.

The Amendments

The 1994 legislation provided for reasonable attorney fees in certain cases if the federalemployee or applicant for a federal job is the prevailing party and the MSPB or administrative lawjudge determines that payment by the agency "is in the interest of justice." (124) The statute requiredthe Special Counsel, ten days before terminating an investigation of a prohibited personnel practice,to provide a written status report to the whistleblower of the proposed findings of fact and legalconclusions. (125) Theemployee then has an opportunity to respond and provide additional supporting information. Through other provisions in the amendments, Congress attempted to even the field for legitimatewhistleblowers. (126)

Military Whistleblowers

During debate on the WPA, Representative Barbara Boxer said that Members of Congress"learned when we passed the Military Whistleblower Protection Act that without whistleblowers,frankly, we really could not do our job, because . . . we need information and we need a free flowof information from Federal employees, be they military or civilian." (127) The MilitaryWhistleblower Protection Act (10 U.S.C. Â§ 1034) is not a single statute but rather an accumulationof several.

1956 Legislation

The first mention of Section 1034 was in 1956, with the codification of Title 10. Section1034 provided: "No person may restrict any member of an armed force in communicating with amember of Congress, unless the communication is unlawful or violates a regulation necessary to thesecurity of the United States." (128) Congress adopted this language during a tense confrontationwith the Eisenhower Administration over access to agency information. In 1954, PresidentEisenhower wrote a letter to Secretary of Defense Charles E. Wilson in which he prohibitedtestimony concerning certain conversations and communications between employees in the executivebranch. (129) AttorneyGeneral Herbert Brownnell, Jr. released a legal memorandum stating that the courts had "uniformlyheld that the President and the heads of departments have an uncontrolled discretion to withhold theinformation and papers in the public interest." (130) The Justice Department prepared a 102-page brief concludingthat Congress "cannot, under the Constitution, compel heads of departments to make public whatthe President desires to keep secret in the public interest." (131) Representative JohnMoss said the Justice Department analysis was a demand that Congress "rely upon spoon-fedinformation from the President." (132)

Whistleblower Protection

Congress had created an inspector general for the Defense Department in 1982. Legislationin 1988 added a section on "Safeguarding of Military Whisteblowers," including prohibitions onretaliatory personnel actions against a member of the armed services for making or preparing aprotected communication with a Member of Congress or an inspector general. The IG wasauthorized to investigate allegations by a member of the armed services who claims that a prohibitedpersonnel action has been taken or threatened to be taken. (133) The conference reportexplained:

The conferees note that in the course of their duties,members of the Armed Forces may become aware of information evidencing wrongdoing or wasteof funds. It is generally the duty of members of the Armed Forces to report such information throughthe chain of command. Members of the armed forces, however, have the right to communicatedirectly with Members of Congress and Inspectors General (except to the extent that acommunication is unlawful under applicable law or regulation), and there may be circumstances inwhich service members believe it is necessary to disclose information directly to a Member ofCongress or an Inspector General. When they make lawful disclosures, they should be protectedfrom adverse personnel consequences (or threats of such consequences), and there should be promptinvestigations and administrative review of claims of reprisals. When such a claim is found to bemeritorious, the Secretary concerned should initiate appropriate corrective action, includingdisciplinary action when warranted. (134)

Other modifications of the Military Whistleblower Protection Act are found in legislation passed in1989, 1994, 1998, and 2000. (135)

A current case of a military whistleblower concerns Bunnatine Greenhouse, who served asthe chief of civilian contracting for the U.S. Army Corps of Engineers until she was demoted onAugust 27, 2005. She and the law firm representing her claim that she was demoted in retaliationfor publicizing the concerns she had about no-bid contracts for work done in Iraq. (136) This case receivedwide notice, including a PBS documentary and a Washington Post article. (137)

Nondisclosure Agreements

In 1983, President Ronald Reagan directed that all federal employees with access to classifiedinformation sign "nondisclosure agreements" or risk the loss of their security clearance. (138) Congress, concernedabout the vagueness of some of the terms in the Reagan order and the loss of access to information,passed legislation in 1987 to prohibit the use of appropriated funds to implement theAdministration's nondisclosure policy. (139) The dispute was taken to court and in 1988 District CourtJudge Oliver Gasch held that Congress lacked constitutional authority to interfere, by statute, withnondisclosure agreements drafted by the executive branch to protect the secrecy of classifiedinformation. (140) Judge Gasch quoted from the Supreme Court's decision in Egan , issued in early 1988: "Theauthority to protect such [national security] information falls on the President as head of theExecutive Branch and as Commander in Chief." (141)

Department of the Navy v. Egan

Egan had been decided on statutory, not constitutional, grounds. The dispute involved theNavy's denial of a security clearance to Thomas Egan, who worked on the Trident submarine. Hewas subsequently removed. Egan sought review by the Merits Systems Protection Board (MSPB),but the Supreme Court upheld the Navy's action by ruling that the grant of security clearance to aparticular employee, "a sensitive and inherently discretionary judgment call, is committed by law tothe appropriate agency of the Executive Branch." (142) The conflict in Egan was solely within the executive branch(Navy versus MSPB), not between Congress and the executive branch.

The focus on statutory, not constitutional, issues was reflected in briefs submitted by theparties. The Justice Department noted: "The issue in this case is one of statutory construction and'at bottom . . . turns on congressional intent.'" (143) The Court directed the parties to address this question:"Whether, in the course of reviewing the removal of an employee for failure to maintain a requiredsecurity clearance, the Merit Systems Protection Board is authorized by statute to review thesubstance of the underlying decision to deny or revoke the security clearance." (144)

The questions centered on 5 U.S.C. Â§Â§ 7512, 7513, 7532, and 7701. The Justice Department,after analyzing the relevant statutes and their legislative history, found no basis for concluding thatCongress intended the MSPB to review the merits of security clearance determinations. (145) Oral argument beforethe Court on December 2, 1987, explored the statutory intent of Congress. At no time did the JusticeDepartment suggest that classified information could be withheld from Congress. The Court's rulingin favor of the Navy did not limit in any way the right of Congress to classified information. TheCourt decided the "narrow question" of whether the MSPB had statutory authority to review thesubstance of a decision to deny a security clearance. (146)

Although the Court referred to independent constitutional powers of the President, includingthose as Commander in Chief and as head of the executive branch, (147) and noted thePresident's responsibility with regard to foreign policy, (148) its decision was based on statutory construction. In stating thatcourts "traditionally have been reluctant to intrude upon the authority of the Executive in militaryand national security affairs," the Court added this important qualification: " unless Congressspecifically has provided otherwise ." (149) The Justice Department's brief had also stated: "Absent anunambiguous grant of jurisdiction by Congress, courts have traditionally been reluctant to intrudeupon the authority of the executive branch in military and national security affairs." (150) Nothing in thelegislative history of the Civil Service Reform Act of 1978 convinced the Court that MSPB couldreview, on the merits, an agency's security-clearance determination. (151)

The President's national security powers surfaced at times during oral argument before theSupreme Court, when the Justice Department and Egan's attorney, William J. Nold, debated theunderlying statutory issues. After the department made its presentation, Nold told the Justices: "Ithink that we start out with the same premise. We start out with the premise that this is a case thatinvolves statutory interpretation." Nold stated his view of the department's occasional references toconstitutional matters: "What they seem to do in my view is to start building a cloud around thestatute. They start building this cloud and they call it national security, and as their argumentprogresses ... the cloud gets darker and darker and darker, so that by the time we get to the end, wecan't see the statute anymore. What we see is this cloud called national security." (152)

In disposing of the issue on statutory grounds, the Court also cited the President's role asCommander in Chief and said that the President's authority to protect classified information "flowsprimarily from this constitutional investment of power in the President and exists quite apart fromany explicit congressional grant." (153) The constitutional issue would have been joined had the Courtfaced statutory language that the administration objected to as an interference with executive power. That issue was not present in Egan .

The District Court's Decision

Having relied on Egan , Judge Gasch also looked to language in the Supreme Court's Curtiss-Wright decision. (154) From the latter case Judge Gasch concluded that the "sensitiveand complicated role cast for the President as this nation's emissary in foreign relations requires thatcongressional intrusion upon the President's oversight of national security information be moreseverely limited than might be required in matters of purely domestic concern." (155)

The central issue in Curtiss-Wright was the scope of congressional power. The Court wasasked how broadly Congress could delegate its powers to the President in the field of foreign affairs. The previous year the Court had struck down the National Industrial Recovery Act because it haddelegated an excessive amount of legislative power to the President in the field of domesticpolicy. (156) Thequestion before the Court in Curtiss-Wright was whether Congress could use more general standardsin foreign affairs than it could in domestic affairs, and the Court said it could.

Several courts have remarked on Justice Sutherland's views in Curtiss-Wright regarding thescope of presidential power in foreign relations. In the Steel Seizure Case of 1952, Justice RobertJackson noted that "much of the [Sutherland] opinion is dictum" -- comments extraneous to the issuebefore the Court. (157) In 1981, a federal appellate court cautioned against placing undue reliance on "certain dicta" inSutherland's opinion: "To the extent that denominating the President as the 'sole organ' of the UnitedStates in international affairs constitutes a blanket endorsement of plenary Presidential power overany matter extending beyond the borders of this country, we reject that characterization." (158)

On October 31, 1988, the Supreme Court noted probable jurisdiction in the case decided byJudge Gasch, now styled American Foreign Service Assn. v. Garfinkel. (159) Both the House andthe Senate submitted briefs protesting Judge Gasch's analysis of the President's powers over foreignaffairs. During oral argument, the Justice Department spoke repeatedly about the President'sconstitutional role to control classified information. The attorney for AFSA challenging the Reagannondisclosure policy objected that the decision by Judge Gasch, "by declaring that the ExecutiveBranch has such sweeping power, has impeded the kind of accommodation that should take placein this kind of controversy," and hoped that the Court "wipes that decision off the books." (160)

On April 18, 1989, the Court issued a per curiam order that vacated Judge Gasch's order andremanded the case for further consideration. (161) In doing so, the Court cautioned Judge Gasch to avoidexpounding on constitutional matters: "Having thus skirted the statutory question whether theExecutive Branch's implementation of [Nondisclosure] Forms 189 and 4193 violated Â§ 630, the courtproceeded to address appellees' [the government's] argument that the lawsuit should be dismissedbecause Â§ 630 was an unconstitutional interference with the President's authority to protect thenational security." (162) The Court counseled Judge Gasch that the district court "should not pronounce upon the relativeconstitutional authority of Congress and the Executive Branch unless it finds it imperative to do so. Particularly where, as here, a case implicates the fundamental relationship between the Branches,courts should be extremely careful not to issue unnecessary constitutional rulings." (163)

On remand, Judge Gasch held that the plaintiffs (American Foreign Service Association andMembers of Congress) failed to state a cause of action for courts to decide. (164) Having dismissed theplaintiffs' complaint on that ground, Judge Gasch found it unnecessary to address any of theconstitutional issues. (165)

Funding Restrictions (Nondisclosure Forms)

Congress continues to enact provisions in appropriations bills to deny funds to implementnondisclosure forms. Legislation enacted on January 23, 2004 provided that no funds appropriatedin the Consolidated Appropriation Act for fiscal 2004, or in any other statute, "may be used toimplement or enforce the agreements in Standard Forms 312 and 4414 of the Government or anyother nondisclosure policy, form, or agreement if such policy, form, or agreement does not containthe following provisions: 'These restrictions are consistent with and do not supersede, conflict with,or otherwise alter the employee obligations, rights or liabilities created'" by the Lloyd-LaFollette Act(5 U.S.C. Â§ 7211), the Military Whistleblower Protection Act, the Whistleblower Protection Act, theIntelligence Identities Protection Act, and other statutes that enable Congress to receive informationfrom agency employees. Notwithstanding that provision, a nondisclosure policy form or agreementthat is executed by a person connected with the conduct of an intelligence or intelligence-relatedactivity, other than an employee or officer of the federal government, "may contain provisionsappropriate to the particular activity for which such document is to be used." Such form oragreement shall, at a minimum, require that the person "will not disclose any classified informationreceived in the course of such activity unless specifically authorized to do so by the United StatesGovernment." Furthermore, such nondisclosure forms "shall also make it clear that they do not bardisclosures to Congress or to an authorized official or an executive agency or the Department ofJustice that are essential to reporting a substantial violation of law." (166) That language alsoappears in the Transportation, Treasury appropriations law enacted on November 30, 2005. (167)

Funding Restrictions (Access to Congress)

Also in annual appropriations acts, Congress adopts language to deny funds to pay the salaryof any executive official who prevents agency employees from communicating with a Member ofCongress, committee or subcommittee. Language in the Consolidated Appropriations Act for fiscal2004 provided that no part of any appropriation contained in that statute or any other would beavailable for the payment of the salary of any federal government officer or employee who "(1)prohibits or prevents, or attempts or threatens to prohibit or prevent, any other officer or employeeof the Federal Government from having any direct oral or written communication or contact withany Member, committee, or subcommittee of the Congress in connection with any matter pertainingto the employment of such other officer or employee or pertaining to the department or agency ofsuch officer or employee in any way, irrespective of whether such communication or contact is atthe initiative of such other officer or employee or in response to the request or inquiry of suchMember, committee, or subcommittee." Funds are also denied for the payment of the salary of anyfederal officer or employee who "(2) removes, suspends from duty without pay, demotes, reducesin rank, seniority, status, pay, or performance of efficiency rating, denies promotion to, relocates,reassigns, transfers, disciplines, or discriminates in regard to any employment right, entitlement, orbenefit, or any term or condition of employment of, any other officer or employee of the FederalGovernment, or attempts or threatens to commit any of the foregoing actions with respect to suchother officer or employee, by reason of any communication or contact of such other officer oremployee with any Member, committee, or subcommittee as described in paragraph (1)." (168) That language appearsalso in the Transportation, Treasury appropriations statute for fiscal 2006. (169)

OLC Opinion in 1996

On November 26, 1996, the Office of Legal Counsel (OLC) in the Justice Department issuedan eight-page opinion on "(1) the application of executive branch rules and practices on disclosureof classified information to Members of Congress, in light of relevant congressional enactments; (2)the applicability of the Whistleblower Protection Act; and (3) the applicability of Executive Order12674." (170)

Executive Order 12674, signed by President Bush on April 12, 1989, established "Principlesof Ethical Conduct for Government Officers and Employees." The principles included: "Employeesshall disclose waste, fraud, abuse and corruption to appropriate authorities." (171) The executive orderdefines "employee" to mean "any officer or employee of an agency, including a special Governmentemployee," (172) anddefines "agency" to mean "any executive agency as defined in 5 U.S.C. 105, including any executivedepartment as defined in 5 U.S.C. 101, Government corporation as defined in 5 U.S.C. 103, or anindependent establishment in the executive branch as defined in 5 U.S.C. 104 (other than the GeneralAccounting Office), and the United States Postal Service and Postal Rate Commission." (173) "Appropriateauthorities" is not defined in the executive order.

Oversight of Intelligence Community

The question before the OLC was whether this executive order authorized an agencyemployee to disclose "waste, fraud, abuse and corruption" to a Member of Congress, particularly"members of oversight committees with direct interest in such abuse and corruption." (174) The context of thememorandum focused on oversight committees that have jurisdiction over the IntelligenceCommunity. OLC did "not question that in certain circumstances the term ["appropriate authorities"]could include a member of a congressional oversight committee." However, OLC concluded that thequestion of who is an "appropriate authority" to receive classified information "is governed byExecutive Order 12356 and the related directives and practices." The latter executive order "shouldcontrol because it more directly and specifically addresses the subject at issue, the disclosure ofclassified information." (175)

Executive Order 12356, signed by President Reagan on April 2, 1982, governed the handlingof classified information in the executive branch. (176) OLC was asked to address the relationship between thatexecutive order and two congressional enactments concerning the rights of federal employees toprovide information to Congress: the Lloyd-LaFollette Act and the annual provision that prohibitedthe use of appropriated funds to implement or enforce the nondisclosure agreement policy.

Reach of Lloyd-LaFollette

OLC cited the Justice Department's brief in the Garfinkel case to the Supreme Court, wherethe department held that a congressional enactment would be unconstitutional if it were interpreted"to divest the President of his control over national security information in the Executive Branch byvesting lower-ranking personnel in that Branch with a 'right' to furnish such information to a Memberof Congress without receiving official authorization to do so." (177) In effect, this positionwould support restraints such as those in the executive orders issued by Presidents Roosevelt andTaft, at least with respect to classified information. OLC concluded that Lloyd-LaFollette does notconfer a right to furnish national security information to Congress, the nondisclosure agreements maybe validly applied to a disclosure to a Member of Congress, and the appropriations language "doesnot authorize any disclosure to a Member of Congress that is not permitted under Executive Order12356." (178)

"Need to Know" by Lawmakers

OLC was also asked whether Executive Order 12356 could be read to permit a clearedemployee of the executive branch "to disclose classified information to a cleared member ofCongress based on the employee's determination of the member's need to know." (179) OLC noted thatMembers of Congress, as constitutionally elected officers, do not receive security clearances but areinstead presumed to be trustworthy. However, lawmakers are not exempt "from fulfilling the'need-to-know' requirement." On the issue whether individual employees "are free to make adisclosure to Members of Congress based on their own determination on the need-to-knowquestion," OLC said that the answer "is most assuredly 'no.'" (180) The determination of"need to know" regarding disclosures of classified information to Congress "is made throughestablished decisionmaking channels at each agency." OLC stated the opinion that it would be"antithetical to the existing system for an agency to permit individual employees to decideunilaterally to disclose classified information to a Member of Congress -- and we are unaware of anyagency that does so." (181)

Regarding the WPA, OLC was asked whether denial or revocation of a SensitiveCompartmented Information (SCI) security clearance is a "personnel action" within the meaning ofthe WPA. Citing such cases as the Supreme Court's decision in Egan and McCabe v. Departmentof the Air Force , decided by the Court of Appeals for the Federal Circuit, OLC concluded that therevocation of a security clearance is not a personnel action within the meaning of the WPA. (182)

OLC also examined language in Title 5, under prohibited personnel practices, that nothingin that subsection shall be construed "to authorize the withholding of information from the Congressor the taking of any personnel action against an employee who discloses information to theCongress." (183) OLCsaid the Justice Department in Garfinkel had rejected the argument that the quoted language conferred an affirmative right to make disclosures of classified information to Members of Congress. Subsection 2302(b)(8)(B) discussed disclosures of classified information only to inspectors generalor the Office of Special Counsel of the MSPB.

CIA Whistleblower Act of 1998

OLC's memorandum prompted Congress to hold hearings and analyze the Administration'sposition that the President exercises exclusive control over the disclosure of classified information,including disclosure to Members of Congress and its committees. The Senate IntelligenceCommittee asked CRS to evaluate OLC's statutory and constitutional conclusions, and that analysiswas published. (184) The Committee also held two days of hearings. (185) The Justice Department continued to hold that bills draftedto assure congressional access to classified information, submitted to Congress by intelligencecommunity employees without the permission of their supervisors, were unconstitutional.

The Senate Bill

The Senate Intelligence Committee unanimously reported legislation after commenting thatthe Administration's "intransigence on this issue compelled the Committee to act." (186) The Senate bill wouldhave directed the President to inform employees within the intelligence community that it is notprohibited by law, executive order, or regulation, nor contrary to public law, to disclose certaininformation, including classified information, to an appropriate committee of Congress. (187) The purpose of the billwas to make employees within the intelligence community aware that they may, without seeking orobtaining prior authorization from an agency supervisor, disclose certain information to Congress,including classified information, when they have reason to believe that the information is specificand direct evidence of "a violation of law, rule or regulation; a false statement to Congress on anissue of material fact; or gross mismanagement, a gross waste of funds, a flagrant abuse of authority,or a substantial and specific danger to public health or safety." (188)

The House Bill

The House Intelligence Committee held two days of hearings on a bill that provided analternative procedure for gaining information from national security whistleblowers. (189) Chairman Porter J.Goss made these opening comments:

The present arrangement, or lack of arrangement, forwhistleblowers in our [intelligence] community is not the answer. CIA, as I understand, has nowritten regulation in place and NSA had one that was disavowed by the current administration. Iknow of no regulation or system within the Intelligence Community that ensures the confidentialityof the whistleblower. There is no legal protective mechanism for an IC whistleblower againstofficial and unofficial retaliation of which I am aware. Nothing currently gives him a right to beheard directly by the intelligence committees.

I think the only exception I can think of might be oneunder clauses of the Agent Identities Protection Act, which is a very narrowarea.

The result of this system is unacceptable. Employeesof the IC may, at present, have to take huge chances with classified documents, compartmentedinformation and their careers in order to come down to report to us.... Worst of all, from aninstitutional point of view, is that very few employees dare to run this gauntlet to bring us theinformation we need to do appropriate oversight. (190)

"Sole Process" and "Holdback"

Chairman Goss identified two central issues in the legislation. One was the question whetherCIA employees should report their concerns only to the inspector general. Was the IG to be the "soleprocess" by which an employee may report a serious or flagrant problem to Congress? Second,should the head of an intelligence agency have a "holdback" power? That is, should the agency headbe authorized to block a whistleblower's complaint "in the exceptional case and in order to protectvital law enforcement, foreign affairs on national security interest." (191)

When the House bill was reported it was decided that the IG mechanism for whistleblowersshould not be the "sole process" for them to report wrongdoing to Congress. The House bill wouldprovide an additional procedure to the existing IG route. (192) The House Intelligence Committee recognized that someagency employees might "choose not to report a problem either through the process outlined [in thebill] or through another process authorized by their management, but instead approach the committeedirectly." (193) Thecommittee also decided to eliminate the "holdback" provision. Agency heads would not have theauthority to block disclosures by agency employees to Congress. A statutory acknowledgment ofholdback authority was dropped because it was considered "unwarranted and could undermineimportant congressional prerogatives." (194)

Authority Over Classified Information

Like the Senate, the House Intelligence Committee rejected the Administration's "assertionthat, as Commander in Chief, the President has ultimate and unimpeded constitutional authority overnational security, or classified, information. Rather, national security is a constitutionalresponsibility shared by the executive and legislative branches that proceeds according to theprinciples and practices of comity." (195) Consistent with that position, the committee rejected thetheory that the President, as Chief Executive, "has a constitutional right to authorize all contactbetween executive branch employees and Congress." The issue of whether an agency employee"must 'ask the boss' before approaching the intelligence committees with unclassified informationabout wrongdoing seems well below any constitutional threshold." (196) The handling ofclassified information was addressed in the bill that became law.

The Statute

The two houses worked out their differences in conference committee and reported theIntelligence Community Whistleblower Protection Act as Title VII to the Intelligence AuthorizationAct for Fiscal Year 1999. The compromise bill established "an additional process to accommodatethe disclosure of classified information of interest to Congress." The new procedure was not "theexclusive process by which an Intelligence Community employee may make a report to Congress." The conference report stated that "the managers agree that an Intelligence Community employeeshould not be subject to reprisals or threats of reprisals for making a report to appropriate Membersor staff of the intelligence committees about wrongdoing within the Intelligence Community." (197) The statute coveredcommunications from the agency to Capitol Hill through the intelligence committees.

The statutory language lists six findings: "(1) national security is a shared responsibilityrequiring joint efforts and mutual respect by Congress and the President; (2) the principles of comitybetween the branches of Government apply to the handling of national security information; (3)Congress, as a co-equal branch of Government, is empowered by the Constitution to serve as a checkon the executive branch; in that capacity, it has a "need to know" of allegations of wrongdoing withinthe executive branch, including allegations of wrongdoing in the Intelligence Community; (4) nobasis in law exists for requiring prior authorization of disclosures to the intelligence committees ofCongress by employees of the executive branch of classified information about wrongdoing withinthe Intelligence Community; (5) the risk of reprisal perceived by employees and contractors of theIntelligence Community for reporting serious or flagrant problems to Congress may have impairedthe flow of information needed by the intelligence committees to carry out oversight responsibilities;and (6) to encourage such reporting, an additional procedure should be established that provides ameans for such employees and contractors to report to Congress while safeguarding the classifiedinformation involved in such reporting." (198)

Under the procedures set forth in the statute, an employee or contractor of the CIA "whointends to report to Congress a complaint or information with respect to an urgent concern mayreport such complaint or information to the Inspector General." (199) The language "mayreport" is consistent with the congressional rejection of the IG office as being the "sole process" forreporting complaints.

The statute defines "urgent concern" to mean any of the following: (1) "A serious or flagrantproblem, abuse, violation of law or Executive order, or deficiency relating to the funding,administration, or operations of an intelligence activity involving classified information, but doesnot include differences of opinion concerning public policy matters"; (2) "A false statement toCongress, or a willful withholding from Congress, or an issue of material fact relating to the funding,administration, or operation of an intelligence activity"; and (3) "An action, including a personnelaction described in section 2302(a)(2)(A) of title 5, United States Code, constituting reprisal or threatof reprisal prohibited under subsection (e)(3)(B) in response to an employee's reporting an urgentconcern in accordance with this paragraph."

Upon receiving the complaint or information, the IG has 14 calendar days to determinewhether it appears credible. If the IG decides it is, the complaint must be transmitted to the CIADirector who has seven calendar days to forward the matter to the intelligence committees. If theIG does not transmit the complaint or information, or does not transmit it in an accurate form, theemployee may submit the matter to Congress by contacting either or both of the intelligencecommittees. The statute provides for no "holdback" procedure.

In 2001, Congress enacted modifications to this statute. (200) The changes relate tocommunications between the IG and the director as to whether a complaint from an agency employeeappears credible, and the authority of employees to contact the intelligence committees when the IGdoes not find the complaint credible.

The Richard Barlow Case

In 2002, the U.S. Court of Federal Claims decided the case of Richard Barlow, who in thelate 1980s faced termination from the Defense Department and suspension of security clearancesfollowing disputes within the executive branch, and between the executive branch and Congress,about Pakistan's nuclear capabilities. Some central questions reportedly were whether executiveofficials had misled lawmakers, in secret briefings, regarding Pakistan's activities, and whether theReagan Administration had improperly certified to Congress that Pakistan did not have nuclearweapons. (201)

After a number of investigations by the Defense Department and several by inspectorsgeneral and the General Accounting Office regarding retaliations against Barlow's whistlebloweractivities, a bill was introduced ( S. 2274 ) to provide for the relief of Barlow. (202) The private billincluded the sum of $1,100,000 to compensate him for losses incurred as a consequence of "(1)personnel actions taken by the Department of Defense affecting Mr. Barlow's employment at theDepartment (including Mr. Barlow's top secret security clearance) during the period of August 4,1989, through February 27, 1992; and (2) Mr. Barlow's separation from service with the Departmentof Defense on February 27, 1992." (203) On October 5, 1998, the Senate referred the matter to theCourt of Federal Claims requesting that it report back findings of fact and conclusions "that aresufficient to inform the Congress of the nature, extent, and character of the claim for compensationreferred to in such bill [S. 2274] as a legal or equitable claim against the United States ora gratuity." (204)

State Secrets Privilege

Barlow and his attorneys, through the discovery process, sought documents which theyalleged would show that Congress had been misled about Pakistan's capabilities. They claimed thatthe evidence would show a motivation on the part of Barlow's supervisor in the Defense Departmentto take adverse personnel actions against him for his whistleblowing. On February 10, 2000, CIADirector George Tenet signed a declaration and formal claim of state secrets privilege and statutoryprivilege. The declaration denied Barlow and his attorney access to any of the classified intelligenceinformation under Tenet's control. Tenet said that it would not be possible "to sanitize or redact inany meaningful way" the information that Barlow sought. (205) A separate declarationby Lt. Gen. Michael V. Hayden, Director of the National Security Agency, also invoked the statesecrets privilege to assert the agency's privilege over NSA intelligence reports and information fromintelligence reports contained in minutes of the Nuclear Export Violations Working Group(NEVWG) meetings. (206)

The Tenet declaration did not automatically block Barlow's access to the requested materials. Tenet acknowledged that the branch that decides what evidence to admit is the judiciary, not theexecutive branch: "I recognize it is the Court's decision rather than mine to determine whetherrequested material is relevant to matters being addressed in litigation." (207) The Haydendeclaration did not contain that language, but courts have discretion to determine whether anexecutive claim of state secrets privilege should be treated as absolute or as qualified. The Court ofFederal Claims had several options. It could have ordered the government to provide a full publicaccount of why disclosure of the information would harm national security. (208) It could haveconducted "an in camera examination of the requested materials" (209) and also asked thatsensitive material be redacted to permit access by Barlow.

Options for the Court

In a decision filed July 18, 2000, and reissued August 3, 2000, the Court of Federal Claimsinitially acknowledged that the state secrets privilege was qualified, not absolute. Although it notedthat some courts have held that state secrets are "absolutely privileged from disclosure in thecourts," (210) it statedthat "the mere formal declaration of the privilege does not end the court's inquiry." (211) Toward the end of thisanalysis, however, the court ruled that state secrets were absolute: "The privilege is absolute, the lawhaving evolved to reflect a choice of secrecy over any balancing of risks and harms." (212) The court concludedthat the documents sought by Barlow, "to the extent not already produced or located, are privileged in toto ." (213)

The court continued the trial and allowed the government to introduce the documents andtestimony to support its case, while at the same time denying Barlow access to documents andtestimony he requested to support his position. On May 4, 2000, Barlow's attorneys, Paul C. Warnkeand Diane S. Pickersgill, objected that the state secrets privilege should not apply to congressionalreference cases to prevent Barlow and the court access to "key evidence." (214) Warnke andPickersgill argued that the court should review the documents in camera. (215) They noted that theSenate had ordered the court to "make a determination of the merits" of Barlow's claim forcompensation and that the information he sought in discovery was "necessary for this Court to makea fully-informed decision and thus a fully-informed recommendation to Congress." (216)

Applying Egan

In the January 14, 2002, ruling, the court recognized that there had been a "temporarysuspension" of Barlow's security clearance. (217) In Egan , the plaintiff's security clearance had been revoked. The court stated that in Egan the Supreme Court held that "the authority to protect classifiedinformation remains within the Executive Branch," determinations about security clearances are anattempt to predict an individual's future behavior, and that such "'[p]redictive judgment of this kindmust be made by those with the necessary expertise in protecting classified information' and, in turn,not by the courts." (218) The court then concluded: "Basing a claim to relief in any way on the suspension of the clearancewould inevitably draw the court into improperly second guessing executive branch offices in a highlydiscretionary function. We decline to do so." (219)

The Supreme Court in Egan supported the discretionary judgment of the executive branchto determine security clearances and to revoke them. The Court's decision did address the questionof whether a court may examine, in camera, classified documents to determine whether they wereproperly withheld from a plaintiff under the state secrets privilege.

"Official Secrets"

In 2000, Congress passed a bill that would have established criminal penalties for leakingclassified information. Fines and imprisonment for up to three years were included to punish anycurrent or former government employee who "knowingly and willfully discloses, or attempts todisclose," any classified information to a person not authorized to receive the information, "knowingthat the person is not authorized access to such classified information." (220) Criminal liability didnot apply to the disclosure of classified information to federal judges established under Article IIIor to any Member or committee of Congress.

During House debate on the bill reported from conference committee, several Membersreferred to it as an "official secrets" law. (221) One Member said it would intimidate whistleblowers. (222) Another thoughtit"would silence whistleblowers in a way that has never before come before this body and which hasnever before been enacted." (223) Another disagreed: "I do not think that is true at all. First ofall, whistle-blowers are protected under the current law. Secondly, whistle-blowers who have aconcern about whether information is properly classified or there is a concern about the agency thatthey are working for, can come to Congress." (224) Similarly, another Member regarded whistleblowers asprotected by the bill "[s]o long as they come forward with matters that are security matters aboutwhich they are concerned and they disclose them to people who are cleared to received suchinformation." (225)

This debate raised the possibility that leaking information to the press would put reportersat risk. One Member stated that "this [bill] does not pertain to the news media." (226) Another saw "nothing[in the bill] to prevent reporters from being hauled in before grand juries and being forced to revealtheir sources." (227) Chief executives of four of the largest news organizations (CNN, the New York Times, NewspaperAssociation of America, and the Washington Post) wrote to President Clinton, urging him to vetothe bill. The Radio-Television News Directors Association also joined in this appeal to PresidentClinton. (228)

President Clinton vetoed the bill on November 4, 2000. Among other points, he said that thebill "was passed without benefit of public hearings -- a particular concern given that it is the publicthat this law seeks ultimately to protect. The Administration shares the process burden since itsdeliberations lacked the thoroughness this provision warranted, which in turn led to a failure toapprise the Congress of the concerns I am expressing today." (229)

Pending Legislation

Legislation has been introduced in the House and the Senate to make changes in theWhistleblower Protection Act. S. 494 , called the Federal Employee Protection ofDisclosures Act, was introduced on March 2, 2005, and reported from the Committee on HomelandSecurity and Governmental Affairs on May 25. The purpose is "to clarify the disclosures ofinformation protection from prohibited personnel practices, require a statement in nondisclosurepolicies, forms, and agreements that such policies, forms, and agreements conform with certaindisclosure protections, provide certain authority for the Special Counsel, and for otherpurposes." (230)

In reporting the bill, the Senate Committee on Homeland Security and Governmental Affairsnoted that the terrorist attacks of 9/11 "have brought renewed attention to those who discloseinformation regarding security lapses at our nation's airports, borders, law enforcement agencies, andnuclear facilities." It further states that the right of federal employees to be free from agencyretaliation "has been diminished as a result of a series of decisions of the Federal Circuit Court ofAppeals that have narrowly defined who qualifies as a whistleblower under the WPA and whatstatements are considered protected disclosures." (231) The bill is designed to clarify that disclosures of classifiedinformation to appropriate committees of Congress are protected, to codify the "anti-gag" provisionthat Congress has placed in annual appropriations bills to protect agency employees who comeforward with disclosures of illegality, to authorize the OSC to file amicus briefs in whistleblowercases, and to allow whistleblower cases to be heard by all federal appellate courts for a period of fiveyears. (232)

The committee report also discusses a provision in the bill that relates to whistlebloweractions after 9/11, when agency employees "in several high profile cases have come forward todisclose government waste, fraud, and abuse that posed a risk to national security," but then facedretaliatory action by having their security clearance removed. The Federal Circuit had held that theMSPB lacks jurisdiction over an employee's claim that his security clearance was revoked inretaliation for whistleblowing. Former Special Counsel Elaine Kaplan testified in 2001 that revokinga security clearance "can be a basis for camouflaging retaliation." (233) The Senate bill makesit a prohibited personnel practice for a manager to suspend, revoke, or take other actions regardingan employee's security clearance or access to classified information in retaliation for whistleblowing. Further, the bill provides for expedited review of whistleblower cases by the OSC, the MSPB, andthe reviewing cases where a security clearance has been revoked or suspended. (234)

The Justice Department regards this provision as an intrusion into the President's prerogativeto control national security information and those who have access to it. The committee regardsexecutive branch authority over classified material as "not exclusive, and that Congress properlyplays a role." (235) Thecommittee cites Egan for support (" unless Congress has specifically provided otherwise , courtstraditionally have been reluctant to intrude upon the authority of the Executive in military andnational security affairs"). (236)

Title 5 has included a provision (Section 2302(b)) that nothing in the subsection shall beconstrued to authorize the withholding of information from Congress or the taking of any personnelaction against an agency employee who discloses information to Congress. The Senate bill providesthat a whistleblower must limit the disclosure to a Member of Congress who is authorized to receivethe information or to a legislative staffer who holds the appropriate security clearance and isauthorized to receive the information. (237)

H.R. 1317 , introduced on March 15, 2005, contains a number of provisionssimilar to S. 494 , including clarification of disclosures that are protected fromprohibited personnel practices and a statement to be placed in nondisclosure forms. The House billdirects the Comptroller General to conduct a study of security clearance revocations in whistleblowercases after 1996. H.R. 1317 was marked up on September 29, 2005, and ordered to bereported.

Conclusions

To perform its legislative and constitutional functions, Congress depends on information(domestic and national security) available from the executive branch. The Supreme Court remarkedin 1927 that a legislative body "cannot legislate wisely or effectively in the absence of informationrespecting the conditions which the legislation is intended to affect or change; and where thelegislative body does not itself possess the requisite information -- which not infrequently is true --recourse must be had to those who do possess it." (238) Congress needs information to pass legislation, oversee theadministration of programs, inform the public, and carry out its constitutional duties.

Balancing this legislative need for information with the protection of sensitive nationalsecurity information remains a continuing policy issue. Congress has never accepted the theory thatthe President has exclusive, ultimate, and unimpeded authority over the collection, retention, anddissemination of national security information. Agency heads provide Congress with information,but some Members of Congress have also expressed a need to receive information directly fromrank-and-file employees within an agency. Whistleblowers have helped uncover agencywrongdoing, illegalities, waste, and corruption. The interest of Congress in maintaining an openchannel with agency employees is demonstrated through such statutes as Lloyd-LaFollette, theappropriations riders on the nondisclosure policy, the Military Whistleblower Protection Act, andthe Intelligence Community Whistleblower Act.

Congress also recognizes the need to protect national security information, especially thatrelated to sources and methods, from disclosure. This awareness is reflected in legislation thatallows and encourages intelligence community employees to report issues of waste, fraud, ormismanagement to the intelligence committees of Congress.

Appendix: Whistleblower Organizations

Several organizations have been active with whistleblowing issues. They testify beforecongressional committees, provide assistance with litigation, and offer other services. Some of theseorganizations cover whistleblowing in general. Others focus on national security whistleblowing. From October 9 to October 12, 2005, in Chincoteague, Va., the first annual National SecurityWhistleblowers Conference was held. It was sponsored by the National Security WhistleblowerCoalition, the Cavallo Foundation, Harriet Crosby, the Fertel Foundation, the Fund for ConstitutionalGovernment, and Project on Government Oversight. The purpose was to bring together nationalsecurity whistleblowers to learn from each other, to find collective support for their efforts, and todevelop strategies.

Government Accountability Project (GAP)

Founded in 1977, GAP is a non-profit, public interest organization and law firm that receivesfunding from foundations, individuals, and legal fees. It describes its mission as protecting thepublic interest by promoting government and corporate accountability through advancingoccupational free speech and ethical conduct, defending whistleblowers, and empowering citizenactivists. It litigates whistleblower cases, publicizes whistleblower concerns, and develops policyand legal reforms for whistleblower laws. Much of its work has been in the area of nuclearoversight, food and drug safety, worker health and safety, international reform and nationalsecurity. (239)

National Security Whistleblowers Coalition

The coaliton is a nonpartisan organization dedicated to aiding national securitywhistleblowers. Its stated mission is to advocate governmental and legal reform, educate the publicconcerning whistleblowing activity, provide comfort and fellowship to national securitywhistleblowers subject to retaliation, and work with other public interest organizations to effect goalsdefined in the organization's mission statement. Its membership consists exclusively of current orformer federal employees or civilians working under contract to the United States who, to theirdetriment and personal risk, bring to light fraud, waste, and abuse in government operations andagencies related to national security. (240)

National Whistleblower Center

The National Whistleblower Center is a non-profit, tax-exempt, educational, and advocacyorganization dedicated to helping whistleblowers. Since 1988, it states it has used whistleblowers'disclosures to improve environmental protection, nuclear safety, and government and corporateaccountability. The primary goal of the center is to ensure that disclosures about government orindustry actions that violated the law or harm the environment are fully heard, and that thewhistleblowers who risk their careers to expose wrongdoing are defended. In addition to assistingwhistleblowers, the center lobbies Congress on the need to protect whistleblowers and insists thatofficials be held fully accountable for their conduct. The center maintains a national referral serviceand sponsors litigation. (241)

Project On Government Oversight (POGO)

POGO began in 1981 as an independent, non-profit organization that investigates andexposes corruption in order to achieve a more accountable federal government. It operates on theprinciple that representation and accountability are fundamental to maintaining a strong andfunctioning democracy. Initially it was known as the Project on Military Procurement. It iscommitted to exposing waste, fraud and corruption in the following areas: defense, homelandsecurity, energy and environment, contract oversight, and open government. POGO's "ContractOversight Investigations" examine the federal government's policies and relationships with grantrecipients as well as major companies that receive billions of dollars in contracts and subsidiesannually. (242)