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Will the WikiLeaks Scandal Threaten the Whistleblower Protection Act of 2011?

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Federal employees may find themselves with greater whistleblower protection, if a new bill passes through Congress. The Whistleblower Protection Enhancement Act of 2011, introduced by a bipartisan group of senators, is aimed at strengthening protection for federal employees who disclose fraud and misconduct. The legislation would protect employees who blow the whistle on “gross waste or mismanagement, fraud, abuse, or illegal activity,” as well as those who disclose censorship of scientific or technical information. It will not protect disclosures of disagreements over policy.

But before federal employees start celebrating, consider that efforts to obtain greater whistleblower protections for federal employees have a rocky history. Last December, despite wide support, an-almost identical whistleblower bill failed to pass. The December bill was the product of a 12-year effort to obtain whistleblower protection for federal employees, and even though it passed unanimously in both houses of Congress, it did not become a law. Instead, a single senator placed a secret hold on the bill in the last days of the legislative session, purportedly at the request of House Republicans, effectively killing this whistleblower bill.

Interestingly, the failure of the December bill may be related to the WikiLeaks scandal, which, according to some, tarnished the image of whistleblowers. And in fact, according to the Project on Government Oversight, in the wake of the WikiLeaks scandal, protections for intelligence community workers and disclosures with respect to national security issues were removed from December bill. But in an interview with NPR, Tom Devine, the legal director of the Government Accountability Project, said that the WikiLeaks scandal was not the result of encouraging whistleblower activity, but was the result of not having adequate protections for whistleblowers. Currently, according to Devine, courts have so narrowly interpreted protection for federal whistleblowers that they have no way of protecting themselves from adverse action. In his words:

It’s easier to take cheap shots at whistleblowers because WikiLeaks has been simplistically given the same kind of label. But WikiLeaks is the opposite approach for someone who witnesses fraud, waste, and abuse. Almost all people who work for the government and see something wrong try to work within the system. If they can’t work within their agencies, they try to go to Congress. If that won’t work, then they try to go to the media. And very seldom is this anonymous. But right now every one of those outlets is inviting retaliation against what you can’t defend yourself. The only thing that’s left is WikiLeaks. If Congress acts rationally, they will provide an alternative to anonymously dumping documents. . . . (emphasis added).

Perhaps now that the WikiLeaks scandal is somewhat removed, the Whistleblower Protection Act of 2011 stands a better chance of passing. What do you think about greater protections for federal whistleblowers? Will it help prevent fraud in the government, or will it lead to more WikiLeaks-like national security breaches? And how do you feel about a single senator killing the December whistleblower bill? Do you think the same thing will happen this time?

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