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. 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. 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) 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) 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.