Whistleblowers Testify on High Risk of Retaliation They Face for Going to Congress
United States government whistleblowers, who have gone to Congress in the past, have had a hugely positive impact. However, often government employees, who blow the whistle on fraud, waste, abuse and other examples of wrongdoing to members of Congress, face great risk to their livelihoods.
The Senate Committee on Homeland Security and Governmental Affairs held a hearing where whistleblowers testified about retaliation they have experienced.
An Army special forces officer, Jason Amerine, testified, “After I made protected disclosures to Congress, the Army suspended my [security] clearance, removed me from my job, launched a criminal investigation and deleted my retirement orders with a view to court martial me after I exercised that Constitutional right.”
In 2013, Amerine worked in an office tasked with freeing Sgt. Bowe Bergdahl, who has being held hostage by the Taliban. His office saw the dysfunction in the process of trying to rescue hostages and pursued an option that would have involved swapping a warlord and ally of President Hamid Karzai, Haji Bashir Noorzai, for seven American hostages, including Bergdahl.
According to Amerine, when the Taliban was at the table negotiating, the State Department said it would have to go with a swap between Bergdahl and the five Taliban.
Amerine claims that there was also “a great deal of evidence” that the Defense Department and FBI were implicated in an “illegal or questionable ransom” for Bergdahl. When he turned to Representative Duncan Hunter’s office, who is on the House Armed Services Committee, he eventually was put under criminal investigation.
Hunter setup a meeting between his office and the FBI. During the meeting, the FBI “formally complained to the Army that information” Amerine was “sharing with Rep. Hunter was classified. It was not.” Hunter was also told that the FBI had respect for Amerine’s work but they had to put him in his place.
Senior Special Agent Taylor Johnson of the Homeland Security Department’s Office of Investigations testified about blowing the whistle on corruption surrounding an EB-5 project. (EB-5 is a program that allows foreign nationals to obtain green cards if they make investments of money in the US.)
Johnson said she uncovered evidence of major fraud, money laundering, bank and wire fraud, as well as “ties to organized crime and high ranking officials and politicians, who received large campaign contributions that appeared” to have helped facilitate the EB-5 project.
She reported what she was uncovering through proper channels. Outside agencies and high-ranking officials complained, and the investigation was shut down after a “congressional complaint” was received.
Soon after, Johnson recalled, “I was escorted by three supervisors from my desk and out of my permanent duty station. I was not permitted to access my case file or personal items. I was alienated from my friends and colleagues, who were told by management to steer clear of me since I was facing criminal charges. I was removed from my permanent duty station and initially assigned to an office over 50 miles from my home and family,” a US code violation.
“I almost lost my youngest child, when an adoption social worker tried to verify employment and was told I had been terminated by the agency for a criminal offense,” Johnson further testified.
Jose Rafael Ducos, a Customs and Border Patrol (CBP) chief officer, testified about being retaliated against for reporting overtime pay abuses and formally challenging his immediate supervisors’ conduct. He claimed he was discriminated against because he is Hispanic.
For the past three years, he described workplace harassment and intimidation by individuals in CBP. He involved Sen. Ron Johnson, who sent a letter to Homeland Security Director Jeh Johnson on March 17, 2015, but he continues to be isolated and no longer is assigned to any permanent office.
“In my experience, congressional disclosures spark the ugliest retaliation,” Tom Devine, the legal director of the Government Accountability Project (GAP) testified.
Devine suggested this is because Congress can be a “magnet for public attention” that “can act both to change the balance of resources and the rules of the game.” A “direct linear relationship” exists between “the threat posed by a whistleblower and the severity of retaliation.” In fact, FBI whistleblower Coleen Rowley once suggested that the FBI “viewed Congress with as much and sometimes more hostility” than “enemy nations.”
Devine warned the committee that agencies are now relying on “creative harassment tactics” since the passage of the Whistleblower Protection Enhancement Act in 2012.
“Instead of just firing someone,” agencies put whistleblowers “under criminal investigation but give them the choice of either resigning or facing a prosecutive referral,” Devine explained. It is “very attractive” and “much easier” for them than litigation. They do not have to “prepare formal charges.” All an agency needs is a “good investigative lawyer.” The worst that can happen is the agency has to close a case. But the next month the agency can open another case against that whistleblower under a “new pretext.”
Most alarming is the “sensitive jobs loophole” President Barack Obama’s administration is creating. Devine argued the government is on the “verge of replacing the rule of law with a national security spoils system.”
“This is a national security loophole that would subsume the entire civil service rule of law that’s kept the federal labor force nonpartisan and professional since 1883.” It has been approved by the federal circuit court of appeals and the Office of Personnel Management has issued final regulations, according to Devine.
“Under those rules, the government has uncontrolled power to designate almost any position as national security sensitive,” Devine stated. “Once that happens, sensitive employees no longer have the right to defend themselves in an independent hearing. They don’t even necessarily have the right to know what they are charged with doing wrong in order to lose their designation to work for the federal government.”
It means every whistleblower faces a high risk of being removed from their “sensitive job” if they make disclosure, and Devine said it makes whistleblower protection law a “bad joke.”
Whistleblowing to Congress can have a positive impact. Past whistleblowers have spurred corrective action against Pentagon waste, force delivery of vehicles to Iraq and Afghanistan that would actually protect soldiers from land mines, correct breakdowns in aviation security, force repairs of nuclear power plants, expose and end the practice of law enforcement selling weapons to Mexican drug smugglers. (More examples can be found in Devine’s testimony [PDF].)
Additionally, for people like Amerine, the Military Whistleblower Protection Act is terribly weak. Devine called it the “lowest common denominator in the US code for accountability through whistleblower protection.”
…The key differences between the civilian and military law is first the military law do not have the fair burdens of proof that have given whistleblowers a fighting chance in their hearings. The second is that there’s no right to administrative due process hearing. Everything is enforced by the Department of Defense inspector general. GAO has repeatedly condemned their work as inadequate. And, again, we get numerous whistleblowers from that unit whose disclosures are that it’s operating as a plumbers unit to help finish off the people who seek help there. It’s a very serious problem. We need due process. And, finally, there’s no judicial review there…
Time and time again, politicians, pundits and government officials make statements about how whistleblowers should go through “proper channels.” Yet, here are three examples of whistleblowers who did and faced retaliation. Significantly, Amerine did not leak, but he was accused of revealing classified information so there would be a pretext for punishing him.
Other examples are out there: Thomas Drake, Bill Binney, Kirk Wiebe and Ed Loomis worked for NSA, and their decision to go to an inspector general made them targets. Secret Service agents, who were detailed to a secret surveillance team, went through “proper channels” after being ordered to spy on the neighbor of a “personal friend” of the agency’s director but faced retaliation.
Maj. Ashden Fein, who led the prosecution of US military whistleblower Chelsea Manning, said during her trial that she “did not reach out to a congressman about abuses [she] allegedly saw.” Fein suggested that if she had gone up the chain of command and exercised her rights under the Military Whistleblower Protection Act and that went nowhere then, perhaps, she would have had grounds to go to the press as a “last resort.”
There is no way the current system would have supported Manning pursuing investigations into examples of war crimes and diplomatic misconduct that she believed she had uncovered. And the same goes for NSA whistleblower Edward Snowden, who raised concerns with superiors but ultimately decided it would be best to flee the United States before blowing the whistle on mass surveillance by providing documents to journalists.
The current system is setup to make an example and send a message to any lower-level government employees, who dare to step forward and challenge the actions of those in leadership positions.
“A terrible irony is that my security clearance was suspended on January 15th, the day after [American contractor] Warren Weinstein was killed,” Amerine shared. “We were the only DOD effort actively trying to free the civilian hostages in Pakistan, and the FBI succeeded in ending our efforts the day the dysfunction they sought to protect killed Warren Weinstein.”
Such examples like Amerine leave potential whistleblowers with the question: Why put their livelihood at risk when the end result is going to be the agency mounting a greater defense of the status quo?