LAST week Pfc. Bradley Manning returned to court for his final pretrial hearing in the WikiLeaks case, an appearance that has renewed debate about how to balance the imperatives of national security against the rights of whistle-blowers.
But while Private Manning’s ordeal has received exhaustive news coverage, it may ultimately have a less profound bearing on this tension than a barely noticed memo quietly released by the Obama administration earlier this year.
Issued on Jan. 25, the memo instructs the director of national intelligence and the Office of Personnel Management to establish standards that would give federal agencies the power to fire employees, without appeal, deemed ineligible to hold “noncritical sensitive” jobs. It means giving them immense power to bypass civil service law, which is the foundation for all whistle-blower rights.
The administration claims that the order will simply enable these agencies to determine which jobs qualify as “sensitive.” But the proposed rules are exceptionally vague, defining such jobs as any that could have “a material adverse impact” on national security — including police, customs and immigration positions.
If the new rules are put in place, national security could soon be invoked to deny civil servants like Franz Gayl the right to defend themselves when subjected to retaliation. Back in 2010, Mr. Gayl was accused of engaging in a pattern of “intentional misconduct” and suspended from his job. A Marine Corps adviser who had been deployed to Iraq in 2006, Mr. Gayl claimed he was being punished for publicly disclosing that Pentagon bureaucrats had ignored battlefield requests for mine-resistant armored vehicles, at a time when roadside bombs were killing and maiming soldiers.
Like many whistle-blowers, Mr. Gayl appealed to the Merit System Protections Board, an independent, quasi-judicial agency created in 1978 to safeguard the rights of civil servants, which ordered him to be reinstated.
Mr. Gayle isn’t alone. In the past decade, whistle-blowers have exposed everything from the Bush administration’s efforts to censor reports on climate change to the Food and Drug Administration’s failure to stop the sale of unsafe drugs like Vioxx.
Almost invariably, those who have spoken out have faced harsh reprisals, a problem addressed by the Whistleblower Protection Enhancement Act, a landmark bill passed by Congress last year that provides compensatory damages to whistle-blowers who win their cases after an administrative hearing. President Obama signed the law; he also issued a directive calling for new whistle-blower protections for employees in the intelligence community.
How valuable will the president’s steps be if, in the future, government agencies can simply dismiss insubordinate workers by declaring them unsuitable for an amorphous pool of “sensitive” jobs without having their decisions independently reviewed?
It’s not just whistle-blowers who would be affected. To understand the potential scope of the Jan. 25 memo, consider the case of Berry v. Conyers, involving two low-level Defense Department employees — one an accounting technician, the other a commissary stocker — who were suspended and demoted after their jobs were declared “noncritical sensitive.” The Jan. 25 memo was issued one day after a federal appeals court announced that it would review an earlier decision that went against the employees.
Whistle-blower advocacy groups immediately called foul, saying the memo would effectively eliminate the enforcement of all civil service rights.
• Isla MacGregor, Whistleblowers Tasmania: Private Sector whistleblowers still out in the cold
In 1995 a former Tasmanian Attorney General Judy Jackson made a commitment that she would look into extending Public Interest Discolure laws to include protection of Private Sector whistleblowers once laws were enacted to protect Public Sector employees.
As a consequence of the abject failure of our regulatory authorities such as the EPA, Work Standards Tasmania and the DHHS and the Tasmanian Integrity Commission it is becoming more urgent for the Private Sector to be included in new stronger Public Interest Disclosure Legislation for Tasmania
Whistleblowers Tasmania have received several complaints from whistleblowers who work or have worked for private companies which they allege have acted illegally on various grounds including OH&S and compliance with environmental regulations. The individuals contacting us have feared reprisals from employers if they were to take their complaints to existing regulatory authorities. Under the current circumstances their apprehensions are well founded.
The complaints we have received concern failure to meet legal obligations for compliance standards required in licensing or operations agreements, OH&S risks for workers or public safety.
In a deregulated economy, and regulatory organisations’ deteriorating ability to properly monitor for compliance, enforce regulations, independently police and take appropriate legal action, it is becoming ever more important to protect Private Sector workers’ capability to disclose workplace failures that constitute public or environmental harm.
Whistleblowers Tasmania, while welcoming disclosure of authentic documentation regarding ongoing failings in OH&S or environmental management by private companies, would prefer to see Premier Lara Giddings take the necessary action to protect all Tasmanian workers making disclosures in the public interest irrespective of where they are employed in the Public, Private or Not-For-Profit sectors.