Last night I discussed a variety of whistleblower issues currently in the news:
Over the weekend, I attended a TRUTHCON event presented by the Bradley Manning Support Network and the Georgetown Chapter of the National Lawyers Guild. (Go here to support Bradley Manning now). In the coming weeks Manning's attorneys are set to argue Manning's motion to dismiss the charges based on a failure to provide Manning with a speedy trial and a motion to dismiss the charges based on unlawful pre-trial punishment, specifically allegations of Manning's torture.
Speaking of pre-trial confinement, Glenn Greenwald wrote yesterday about another Swedish suspect's detention:
Gottfrid Svartholm is the founder of the file-sharing Pirate Bay website who has been prosecuted by the Swedish government for enabling copyright infringements. At the behest of Sweden, he was recently arrested in Cambodia and then deported to Stockholm, where he has now also been accused (though not charged) with participating in the hacking of a Swedish company. . . . .These reports of Sweden's draconian treatment of criminal suspects support Wikileaks founder Julian Assange's claim of asylum and concern that, if extradited to Sweden, he will not be treated fairly. If Manning's abhorrent treatment is any evidence, Assange has the same credible fear about not receiving fair treatment if extradited to the U.S., no doubt the U.S.' ultimate goal.
Unlike in the British system, in which all proceedings, including extradition proceedings, relating to Assange would be publicly scrutinized and almost certainly conducted in open court, the unusual secrecy of Sweden's pre-trial judicial process, particularly the ability to hold the accused incommunicado, poses a real danger that whatever happened to Assange could be effectuated without any public notice.
Here in the U.S., last week the House passed the Whistleblower Protection Enhancement Act. My organization, the Government Accountability Project provides a summary of the protections passed in WPEA. The WPEA protections include:
1.) Expanded Protection for Disclosures of Government WrongdoingWhile I applaud the House for acting on WPEA, the WPEA contains a gaping hole in leaving out intelligence community whistleblowers. National Security whistleblowers are arguably a group the public would most want to hear from - especially considering the rampant over-classification plaguing the ever-expanding national security state. But intelligence community whistleblowers have no meaningful protection from retaliation, and are increasingly being targeted for criminal investigation and prosecution under the archaic Espionage Act, a law meant to go after spies, not whistleblowers. WPEA is an important step forward, but with the Espionage Act prosecutions, shameful treatment of Bradley Manning, and ongoing crusade to silence Julian Assange, the U.S. has a long way to go to provide an environment where all whistleblowers have a safe channel to report waste, fraud, abuse, illegality, and dangers to health and public safety.
* Closes judicially-created loopholes that had removed protection for the most common whistleblowing scenarios and left only token rights (e.g. only providing rights when whistleblowers are the first to report misconduct, and only if it is unconnected to their job duties). (Sec. 101, 102)
* Clarifies that whistleblowers are protected for challenging the consequences of government policy decisions. (Sec. 101, 102)
* Protects government scientists who challenge censorship. (Sec. 110)
* Clarifies that protection of critical infrastructure information does not override WPA protection. (Sec. 111)
2.) Expanded Coverage and Fair Processes
* Suspends the Federal Circuit Court of Appeals' sole jurisdiction on appellate review of the WPA in light of its consistent track record of narrowing the law's protections. (The Court has a 3-226 record from October 1994 – May 2012 against whistleblowers for decisions on the merits), restoring all-Circuit review for a two-year experiment as mandated in the original 1978 Civil Service Reform Act and the Administrative Procedures Act. (Sec. 108)
* Establishes explicit whistleblower protections for Transportation Security Administration employees. (Sec. 109)
* Overturns an unusual Merit Systems Protection Board (MSPB) practice that allows agencies in some cases to present their defense first and allows the MSPB to rule on the case prior to the whistleblowers’ presenting their evidence of retaliation. (Sec. 114)
* Provides compensatory damages for prevailing whistleblowers under WPA cases that prevail after an administrative hearing, (Sec. 107(b)), including retaliatory investigations (Sec. 104(c)).
3.) Administrative Authorities
* Makes it easier for OSC to discipline those responsible for illegal retaliation by modifying the burdens of proof (Sec. 106(b)), and by ending OSC liability for attorney fees of government managers, if the OSC does not prevail in a disciplinary action (Sec. 107(a)).