Congressional Record: March 14, 2007 (House)
Page H2510-H2515
PROVIDING FOR CONSIDERATION OF H.R. 985, WHISTLEBLOWER PROTECTION
ENHANCEMENT ACT OF 2007
Mr. HASTINGS of Florida. Mr. Speaker, by direction of the Committee
on Rules, I call up House Resolution 239 and ask for its immediate
consideration.
The Clerk read the resolution, as follows:
H. Res. 239
Resolved, That at any time after the adoption of this
resolution the Speaker may, pursuant to clause 2(b) of rule
XVIII, declare the House resolved into the Committee of the
Whole House on the state of the Union for consideration of
the bill (H.R. 985) to amend title 5, United States Code, to
clarify which disclosures of information are protected from
prohibited personnel practices; to require a statement in
nondisclosure policies, forms, and agreements to the effect
that such policies, forms, and agreements are consistent with
certain disclosure protections, and for other purposes. The
first reading of the bill shall be dispensed with. All points
of order against consideration of the bill are waived except
those arising under clause 9 or 10 of rule XXI. General
debate shall be confined to the bill and shall not exceed one
hour and 20 minutes, with one hour equally divided and
controlled by the chairman and ranking minority member of the
Committee on Oversight and Government Reform and 20 minutes
equally divided and controlled by the chairman and ranking
member of the Committee on Homeland Security. After general
debate the bill shall be considered for amendment under the
five-minute rule. An amendment in the nature of a substitute
consisting of the text of the bill, modified by the
amendments recommended by the Committee on Oversight and
Government Reform now printed in the bill, shall be
considered as adopted in the House and in the Committee of
the Whole. The bill, as amended, shall be considered as the
original bill for the purpose of further amendment under the
five-minute rule and shall be considered as read.
Notwithstanding clause 11 of rule XVIII, no further amendment
to the bill, as amended, shall be in order except those
printed in the report of the Committee on Rules accompanying
this resolution. Each further amendment may be offered only
in the order printed in the report, may be offered only by a
Member designated in the report, shall be considered as read,
shall be debatable for the time specified in the report
equally divided and controlled by the proponent and an
opponent, shall not be subject to amendment, and shall not be
subject to a demand for division of the question in the House
or in the Committee of the Whole. All points of order against
such further amendments are waived except those arising under
clause 9 or 10 of rule XXI. At the conclusion of
consideration of the bill for amendment the Committee shall
rise and report the bill, as amended, to the House with such
further amendments as may have been adopted. The previous
question shall be considered as ordered on the bill and
amendments thereto to final passage without intervening
motion except one motion to recommit with or without
instructions.
Sec. 2. During consideration in the House of H.R. 985
pursuant to this resolution, notwithstanding the operation of
the previous question, the Chair may postpone further
consideration of the bill to a time designated by the
Speaker.
The SPEAKER pro tempore (Mr. Pastor). The gentleman from Florida (Mr.
Hastings) is recognized for 1 hour.
{time} 1245
Mr. HASTINGS of Florida. Mr. Speaker, for purpose of debate only, I
yield the customary 30 minutes to my good friend and colleague from
Florida, Mr. Diaz-Balart. All time yielded during consideration of the
rule is for debate only.
Mr. Speaker, I yield myself such time as I may consume.
(Mr. HASTINGS of Florida asked and was given permission to revise and
extend his remarks.)
Mr. HASTINGS of Florida. Mr. Speaker, House Resolution 239 provides
for consideration of H.R. 985, the Whistleblower Protection Enhancement
Act of 2007 under a structured rule. The rule provides 1 hour and 20
minutes of general debate with 1 hour equally divided and controlled by
the chairman and ranking minority member of the Committee on Oversight
and Government Reform. The remaining 20 minutes will be equally divided
and controlled by the chairman and ranking minority member of the
Committee on Homeland Security.
The rule waives all points of order against consideration of the bill
except clauses 9 and 10 of rule XXI. The rule provides that the
amendment in the nature of a substitute, consisting of the text of the
bill, modified by the amendments, recommended by the Committee on
Oversight and Government Reform, and printed in the bill, shall be
considered as adopted.
The bill, as amended, shall be considered as an original bill for the
purpose of amendment and shall be considered as read. The rule waives
all points of order against provisions in the bill, as amended.
Now, the rule makes in order five amendments, three Republican
amendments and two Democratic, which are printed in the Rules Committee
report accompanying the resolution.
The amendments may be offered only in the order printed in the
report, may be offered only by a Member designated in the report and
shall be considered as read and shall be debatable for the time
specified in the report equally divided and controlled by the proponent
and an opponent.
All points of order against amendments, except for clauses 9 and 10,
are waived.
Finally, the rule provides for one motion to recommit with or without
instructions.
Mr. Speaker, today is an important day for the more than 2.7 million
Federal employees who show us, day in and day out, their commitment to
improving our great country. It is an important day because the House,
in bipartisan cooperation, is closing the loopholes which permitted
retaliation against Federal employees who have reported unlawful fraud,
corruption, incompetence and abuse of power.
Today is an important day because the House is saying loud and clear
that whistleblower protection is an essential component of government,
of government accountability and of government fiscal responsibility.
Throughout our history, whistleblowers have played integral roles in
improving our government and holding it accountable for its negligence.
From Shawn Carpenter to Joseph Darby to Mark Felt, and everyone in
between, whistleblowers have faced harsh penalties from those who would
prefer that what they know is never shared with the public. They have,
nevertheless, put their careers on the line, and in some instances even
their lives, to do what they knew was the right thing to do. Their
courage is to be commended and their conviction embraced.
When history judges this current administration, I believe it will
look down upon the drastic and despicable actions taken by this
administration, which have stifled those seeking to speak truth to
power. These actions are, indeed, some of the very reasons why this
bill is so desperately needed.
For example, in 2005, the Bush administration officials placed a gag
on a senior NOAA official who was scheduled to give an interview
arguing that global warming exists and has contributed to greater and
stronger hurricane activity. Three weeks later, Hurricane Katrina made
landfall, first in my State of Florida, and then in Louisiana and
Mississippi and Alabama, killing hundreds and leaving hundreds of
thousands homeless, jobless and ill.
How can we forget former CIA operative Valerie Plame? Her life, and
the lives of others, were placed in jeopardy after the Vice President's
chief of staff revealed her name to a reporter in retaliation for her
husband, former Ambassador Joe Wilson, revealing that the
administration lied about the existence of weapons of mass destruction
in Iraq and where they were trying to retrieve uranium from Africa.
When the Bush administration hasn't been able to directly punish
whistleblowers, it has simply tried to unilaterally change the law.
Just this past September, after a senior Environmental Protection
Agency scientist revealed that the administration had purposefully
misled the public regarding the air safety at Ground Zero following the
attacks of September 11, the Bush administration issued an executive
order declaring that EPA employees are no longer covered by Federal
whistleblower protections. That is outrageous.
These three high-profile cases, and there are a great deal more,
these three capture only a small snapshot of the problems in the
current administration. More importantly, they highlight the need for
extended protection across all agency lines to Federal whistleblowers.
Unfortunately, for nearly the last decade, Federal whistleblowers
have received nothing more than lip service. Let me make it very clear,
I said for the last decade, that includes the previous administration
and this one. Even when the House drafted legislation in 2002
establishing the Department of Homeland Security, it failed to
[[Page H2511]]
include whistleblower protections for DHS employees.
Now, I am proud that I was the author of the amendment which extended
these protections and was the only Democratic amendment adopted by the
House during consideration of the legislation. The protection of
whistleblowers in recent years has unfortunately garnered only lip
service. Today, the House is backing up these words with real action
that protects our 2.7 million Federal workforce.
I close by noting that this bill is not perfect. That is why the
Rules Committee has made five amendments in order, the majority of
which, I might add, are going to be offered by our colleagues, the
Republicans, on the other side.
Democrats are proud to continue our efforts to work in a bipartisan
manner, and to provide the minority with many opportunities to improve
already good legislation.
General Leave
Mr. HASTINGS of Florida. Mr. Speaker, I ask unanimous consent that
all Members may have 5 legislative days to revise and extend their
remarks during debate on House Resolution 239.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Florida?
There was no objection.
Mr. HASTINGS of Florida. Mr. Speaker, I reserve the balance of my
time.
Mr. LINCOLN DIAZ-BALART of Florida. I would like to thank my friend
from Florida for the time.
Mr. Speaker, I yield myself such time as I may consume.
Congress has the constitutional duty to oversee the executive branch.
In order to discharge our constitutional oversight responsibility,
Congress depends on information obtained through agency reports and
direct communication from Department heads. However, we also depend on
information provided directly from employees within the agencies who
are witnesses to the misuse of taxpayer dollars and alert Congress of
the possible corruption or incompetence in management.
In 1989, Congress passed the Whistleblower Protection Act in an
effort to strengthen statutory protections for Federal employees who
assist in the elimination of fraud, waste, abuse, illegality or
corruption.
H.R. 985 would modernize and expand this protection to Federal
employees, with added whistleblower protection.
For example, the bill would extend protection to FBI agents, CIA
agents, employees of the Defense Intelligence Agency, the National
Geospatial Agency and the National Security Agency.
I think it is important to have whistleblower protection for the
intelligence community. I would like to point out, however, that
Congress has already passed such legislation. In 1998, Congress passed
the Intelligence Community Whistleblower Protection Act to encourage
the reporting to Congress of wrongdoing within the intelligence
agencies.
In crafting the 1998 legislation, Congress sought to balance the need
for information with national security requirements, giving
intelligence community whistleblowers access to Congress but through
the intelligence committees.
Yesterday, the Rules Committee denied the ranking member of the
Intelligence Committee, Mr. Hoekstra, from offering an amendment
striking section 10 of the bill. Section 10 conflicts with the
provisions of the existing Intelligence Community Whistleblower
Protection Act of 1998.
The amendment, I believe, should have been made in order. National
security is obviously one of the most important issues that we deal
with. Before we make changes to how Congress handles intelligence
oversight, we should have a full and complete debate on that particular
provision. We could have done that if the majority had made the
Hoekstra amendment in order.
Under the bill, defendants in whistleblower cases will now be able to
make their cases to any Federal district court if the Merit Systems
Protection Board does not take action within 180 days.
Part of this provision will allow claims to be processed on a more
timely basis than they are now. However, there are possible problems
with the provision.
{time} 1300
Yesterday, Oversight and Government Reform Committee Ranking Member
Davis asked the Rules Committee that his amendment be made in order.
His amendment sought to retain uniformity in the consideration of
whistleblower cases in the Federal courts by keeping in place the
current requirement that all whistleblower appeals go through the
United States Court of Appeals for the Federal Circuit, rather than
opening up appeals to all circuits.
Without the amendment, Federal employee whistleblowers could end up
possessing a different set of rights and protections, depending on
where they file their claim. However, unfortunately, the majority
decided to close down the debate process on that issue, and refused to
allow the House to debate that very important and meaningful amendment.
I believe the majority should have made those amendments, the
Hoekstra amendment and the Davis amendment, in order, along with other
important amendments brought before the Rules Committee.
Mr. Speaker, I reserve the balance of my time.
Mr. HASTINGS of Florida. Mr. Speaker, I yield myself such time,
before yielding to my good friend and colleague on the Rules Committee,
only to respond to my friend from Florida regarding an amendment that
was not made in order of the ranking member of the Intelligence
Committee.
I serve on that committee, and one amendment that was made in order
contemplates everything that the ranking member of the Intelligence
Committee might have provided in the amendment that he sought.
Quite frankly, I think Mr. Tierney's amendment, which we will have an
opportunity to debate here on the floor, will give a full exploration
of those matters having to do with whistleblower concerns in the
intelligence community. So I commend that to my colleague and all here
in this body.
Mr. Speaker, I am very pleased to yield to a new Member, who is not
so new now, to the Rules Committee, my good friend, Mr. Arcuri from New
York. I yield to him 4 minutes.
Mr. ARCURI. Mr. Speaker, I thank my good friend and colleague from
the Rules Committee, the gentleman from Florida, for yielding.
Mr. Speaker, accountability is a word often used but seldom
implemented. For the last 12 years it is as if Congress forgot one of
its principal responsibilities is to demand accountability from the
administration and protect the American people from waste, fraud and
abuse.
The Whistleblower Protection Enhancement Act, which this rule
provides consideration for, will provide additional transparency and
accountability for the way the Federal Government spends tax dollars of
the hardworking Americans.
It is no secret that the only way we can truly gather firsthand
accounts of instances where waste, fraud and abuse occur is from the
people on the inside, the Federal employees. Unfortunately, not all
Federal employees are currently protected from being fired if they
unmask corruption or other fraudulent activities going on inside the
administration.
This legislation goes right to the heart of the issue by extending
much needed whistleblower protections to Federal Government employees
working on national security, government contractor employees and
transportation security employees, including baggage screeners at our
airports. It only makes sense that Federal employees, especially those
who have undergone extensive background investigations, obtained
security clearances and handled classified information on a routine
basis, be afforded the same rights and whistleblower protections as all
other Federal employees.
In addition, this legislation takes some very important steps. It
would abolish the U.S. Circuit Court of Appeals for the Federal
Circuit's exclusive jurisdiction for overhearing whistleblower appeals
cases, taking away its Supreme Court-like jurisdiction and allowing the
appropriate Federal appeals courts in the respective circuit where the
incident took place to hear such cases.
[[Page H2512]]
For instance, if the instance of whistleblowing were to occur in New
York, in my district, that is the Second Circuit. The initial decision
rendered by the Second Circuit should be appealed in the Second
Circuit. It should not be required to come to the Federal Circuit here.
The current appeals structures for hearing whistleblower cases not
only places a hefty financial burden on individuals who would have to
travel from across the country to D.C. just to have their appeal heard,
it also provides a disservice to our Nation's legal system by
overburdening one court.
As a former district attorney, I know from experience that having the
ability to draw on decisions from similar cases rendered from different
courts around the country would greatly improve our legal system. It
would benefit all parties involved, and further enhance our Nation's
exceptional legal system. Further, by allowing other Federal circuit
appellate courts to hear whistleblower appeal cases increases the
opportunity for those cases to be heard by the United States Supreme
Court.
Mr. Speaker, it is time to level the playing field for all Federal
employees who have the courage to stand up for the American people.
I urge my colleagues on both sides of the aisle to support this rule
and the Whistleblower Protection Enhancement Act.
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I yield such time as
he may consume to the distinguished ranking member of the Rules
Committee, Mr. Dreier.
(Mr. DREIER asked and was given permission to revise and extend his
remarks.)
Mr. DREIER. Mr. Speaker, I rise to begin by thanking my friend from
Miami and my friend from Fort Lauderdale. We have got this Sun Belt
linkage now here. The only thing in between it was somebody from
upstate New York there. And I know he likes that better than Los
Angeles, as he told me up in the Rules Committee just before we were
going into our last break. But I am proud that there are three of us at
least who come from the Sun Belt who are representing this debate on
this rule.
Mr. Speaker, I do rise to reluctantly oppose both the rule and the
underlying legislation. The bill is very well-intentioned, and it is
designed to clarify and expand the laws regarding those who try to
expose waste, fraud and mismanagement in the Federal Government.
Whistleblowers, oftentimes, put their jobs at risk to expose
wrongdoing in the workplace, and whistleblowers are absolutely crucial
to our Nation's security, safety and success as well. I believe very
much that their protection is an inherent right for all employees, and
it needs to be maintained.
In addition, the whistleblower protections enable Congress to fulfill
our constitutional responsibility of overseeing the executive branch.
It is imperative that we do that. We need to recognize that we are a
separate and coequal branch of our Federal Government. We have a right
to know the actions of the executive branch and to oversee the
implementation of the laws that we create as Members of this body, and
whistleblowers are a very crucial part of that.
Now, Mr. Speaker, I do support the idea of expanding and modernizing
whistleblower protection laws. But, unfortunately, I believe that this
legislation ends up falling short of that very important goal to which
I believe we all aspire.
The bill aims to extend whistleblower protections to Federal workers
who specialize in national security issues. These workers include
employees of the FBI, the CIA, the Defense Intelligence Agency, among
others. Unfortunately, the bill raises significant national security
concerns that have really led me to conclude that I can't support this
bill in its present form.
Within its oversight obligations, Mr. Speaker, Congress is tasked
with protecting highly classified intelligence programs. It is
absolutely critical for us to ensure that any oversight is conducted by
Members and staff with the appropriate experience and expertise.
Now, this bill, in its current form, compromises that duty and
outlines new procedures that have the potential to expose highly
classified national security programs and information.
Now, during the Rules Committee hearing yesterday, an amendment was
offered by the ranking member of the Permanent Select Committee on
Intelligence, Mr. Hoekstra. And I just heard my friend from Fort
Lauderdale, who has served very ably as a member of the Intelligence
Committee, as well as on the Rules Committee, say that there is another
amendment designed to address this.
But, frankly, I believe very strongly that the amendment that was
filed in a timely manner by the gentleman from Michigan (Mr. Hoekstra)
was one that was not made in order, and I believe really best takes on
this issue of dealing with a better way to ensure the security of this
important, very important information.
Now, Mr. Speaker, 10 amendments were offered at the Rules Committee,
and while I commend the majority for making five of those 10 amendments
in order, I do believe that an open rule would have been more
appropriate. Give the Members of this body the opportunity to offer
amendments to important pieces of legislation like this, not just on
noncontroversial bills, which is what we have seen the open rule
procedure used for in the past.
At the very least, Mr. Speaker, I think we should have made all 10 of
the amendments that were submitted to the Rules Committee in order so
that we could have had a free flowing debate on these, and we would
have had a chance for people like the ranking member of the committee
of jurisdiction here, the Oversight and Government Reform Committee,
Mr. Davis, who served very ably as the chairman of that committee
before we saw last November's election make this change. This former
chairman, the now ranking member, sought to offer an amendment, and he
also was denied a chance to offer that amendment.
I do commend my California colleague, Mr. Waxman, the distinguished
chairman of the committee, as well as Mr. Davis, for their hard work
and expertise on this very critical issue. Unfortunately, I believe
that the bill does, as I say, fall short of that goal. The goal really
is an important one, as I said, to ensure that whistleblowers help us
meet our constitutional responsibility for oversight of the executive
branch.
But the national security concerns that have been raised I think are
such that, in its present form, I am not going to be able to support
this measure.
So, Mr. Speaker, I do urge my colleagues to vote against this rule.
And as I said, I am troubled enough that the bill itself, in its
current form, is not legislation that I can support.
Mr. HASTINGS of Florida. Mr. Speaker, I am very pleased to yield 3
minutes to my good friend and classmate, the gentlewoman from New York
(Mrs. Maloney).
Mrs. MALONEY of New York. I rise, Mr. Speaker, in strong support of
the rule, H. Res. 239, and the underlying bill, H.R. 985, the
Whistleblower Protection Enhancement Act.
And I want to commend, not only the Rules Committee for coming
forward with a fair rule, but also Chairman Waxman and Ranking Member
Davis for moving this important bill out of the Government Reform and
Oversight Committee on which I serve.
The Whistleblower Protection Act has been weakened by court cases in
recent years, and even the weak protections offered under the
Whistleblower Protection Act do not apply to national security
whistleblowers or contractors at those agencies.
The Oversight Committee repeatedly has heard from people who have had
their security clearances revoked after blowing the whistle. In some
cases they have been fired for pointing out lapses in security, for
pointing out waste, fraud and abuse.
We have been told that wrongdoers have been allowed to continue their
actions, while the whistleblowers have been the ones that have been
made to suffer. This is absolutely wrong.
In the 109th Congress I was joined by my colleague, Diane Watson, in
offering an amendment during the committee's consideration of the
Federal Employee Protection of Disclosures Act, that would have
extended whistleblower protections to employees in national security
and in the intelligence community.
I would argue, and I believe many of my colleagues would agree, that
revealing lapses in the security of our
[[Page H2513]]
Nation is a national security priority above all. Whistleblowers in
these categories should be protected.
And I am thrilled that, under Democratic leadership, this has been
included in the bill, that these protections have been extended to
employees of intelligence agencies, and to Federal contractors in
intelligence agencies. This is an important step forward for the
American public. This is an important step forward, I would argue, for
the national security of our country.
Whistleblowers are heroes and heroines. They should not be turned
into villains and be harassed out of their jobs, denied their security
clearance because they see a breach in security or a breach in
accountability in our government.
So I am thrilled with this Democratic bill, and I urge my colleagues
to vote for the rule and also for the underlying bill. I urge all of my
colleagues to support it. It had bipartisan support coming out of our
committee.
{time} 1315
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, I thank again my
distinguished friend from Florida for his courtesy in yielding the
time.
Mr. Speaker, we will oppose the previous question. If the previous
question is defeated, I will offer an amendment to the rule to make in
order the amendment offered yesterday in the Rules Committee by the
gentleman from Michigan, the ranking member of the Permanent Select
Committee on Intelligence, Mr. Hoekstra.
The Hoekstra amendment would safeguard our national intelligence and
allow the Intelligence Committee to appropriately address whistleblower
concerns through regular order. While the Tierney amendment which was
made in order, as was pointed out by my good friend, attempts to
address these concerns, it still allows the possible disemination, we
believe, of highly sensitive information to individuals outside of the
Intelligence Community and, therefore, may put our security at risk.
Mr. Speaker, I ask unanimous consent to insert the text of the
Hoekstra amendment and extraneous materials immediately prior to the
vote on the previous question.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Florida?
There was no objection.
Mr. LINCOLN DIAZ-BALART of Florida. At this time, Mr. Speaker, I urge
all Members to oppose the previous question, and I yield back the
balance of my time.
Mr. HASTINGS of Florida. Mr. Speaker, the underlying legislation is
desperately needed. Federal employees need to know that Congress is on
their side. They need to know that their jobs will not be at risk if
they choose to reveal fraud, abuse of power, neglect, or corruption in
their workplace.
The extension of these whistleblower protections is absolutely
critical to our national security and our government accountability. I
am proud to support the underlying legislation and hope that my
colleagues will do the same. This is a fair rule for a bill that is
supported by Members from both sides of the aisle, including the
chairman and ranking Republican of the Government Reform Committee.
I urge a ``yes'' vote on the previous question and on the rule, Mr.
Speaker.
The material previously referred to by Mr. Lincoln Diaz-Balart of
Florida is as follows:
Amendment to H. Res. 239
Offered by Rep. Lincoln Diaz-Balart of Florida
At the end of the resolution, add the following:
Sec. 3. Notwithstanding any other provision of this
resolution, the amendment printed in section 4 shall be in
order as though printed as the last amendment in the report
of the Committee on Rules if offered by Representative
Hoekstra of Michigan or a designee. That amendment shall be
debatable for 30 minutes equally divided and controlled by
the proponent and an opponent.
Sec. 4. The amendment referred to in section 3 is as
follows:
Strike section 10 of the bill and conform the table of
contents accordingly.
Redesignate sections 11 through 14 as sections 10 through
13, respectively, and conform the table of contents
accordingly.
In section 11(a)(2), as redesignated, strike ``section
2303a (as inserted by section 10)'' and insert ``section
2303''.
In section 13, as redesignated, strike ``section 12(a)(2)''
and insert ``section 11(a)(2)''.
____
(The information contained herein was provided by
Democratic Minority on multiple occasions throughout the
109th Congress.)
The Vote on the Previous Question: What It Really Means
This vote, the vote on whether to order the previous
question on a special rule, is not merely a procedural vote.
A vote against ordering the previous question is a vote
against the Democratic majority agenda and a vote to allow
the opposition, at least for the moment, to offer an
alternative plan. It is a vote about what the House should be
debating.
Mr. Clarence Cannon's Precedents of the House of
Representatives, (VI, 308-311) describes the vote on the
previous question on the rule as ``a motion to direct or
control the consideration of the subject before the House
being made by the Member in charge.'' To defeat the previous
question is to give the opposition a chance to decide the
subject before the House. Cannon cites the Speaker's ruling
of January 13, 1920, to the effect that ``the refusal of the
House to sustain the demand for the previous question passes
the control of the resolution to the opposition'' in order to
offer an amendment. On March 15, 1909, a member of the
majority party offered a rule resolution. The House defeated
the previous question and a member of the opposition rose to
a parliamentary inquiry, asking who was entitled to
recognition. Speaker Joseph G. Cannon (R-Illinois) said:
``The previous question having been refused, the gentleman
from New York, Mr. Fitzgerald, who had asked the gentleman to
yield to him for an amendment, is entitled to the first
recognition.''
Because the vote today may look bad for the Democratic
majority they will say ``the vote on the previous question is
simply a vote on whether to proceed to an immediate vote on
adopting the resolution . . . [and] has no substantive
legislative or policy implications whatsoever.'' But that is
not what they have always said. Listen to the definition of
the previous question used in the Floor Procedures Manual
published by the Rules Committee in the 109th Congress, (page
56). Here's how the Rules Committee described the rule using
information form Congressional Quarterly's ``American
Congressional Dictionary'': ``If the previous question is
defeated, control of debate shifts to the leading opposition
member (usually the minority Floor Manager) who then manages
an hour of debate and may offer a germane amendment to the
pending business.''
Deschler's Procedure in the U.S. House of Representatives,
the subchapter titled ``Amending Special Rules'' states: ``a
refusal to order the previous question on such a rule [a
special rule reported from the Committee on Rules] opens the
resolution to amendment and further debate.'' (Chapter 21,
section 21.2) Section 21.3 continues: Upon rejection of the
motion for the previous question on a resolution reported
from the Committee on Rules, control shifts to the Member
leading the opposition to the previous question, who may
offer a proper amendment or motion and who controls the time
for debate thereon.''
Clearly, the vote on the previous question on a rule does
have substantive policy implications. It is one of the only
available tools for those who oppose the Democratic
majority's agenda and allows those with alternative views the
opportunity to offer an alternative plan.
Mr. HASTINGS of Florida. Mr. Speaker, I yield back the balance of my
time, and I move the previous question on the resolution.
The SPEAKER pro tempore. The question is on ordering the previous
question.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, on that I demand the
yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 and clause 9 of rule
XX, this 15-minute vote on ordering the previous question will be
followed by 5-minute votes on adoption of H. Res. 239, if ordered, and
approval of the Journal, if ordered.
The vote was taken by electronic device, and there were--yeas 224,
nays 197, not voting 12, as follows:
[Roll No. 145]
YEAS--224
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Bean
Becerra
Berkley
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ellison
Ellsworth
[[Page H2514]]
Emanuel
Engel
Eshoo
Etheridge
Farr
Fattah
Filner
Frank (MA)
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Meeks (NY)
Melancon
Michaud
Millender-McDonald
Miller (NC)
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Peterson (MN)
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (GA)
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Waxman
Weiner
Welch (VT)
Wexler
Wilson (OH)
Woolsey
Wu
Yarmuth
NAYS--197
Aderholt
Akin
Alexander
Bachmann
Bachus
Baker
Barrett (SC)
Barrow
Bartlett (MD)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono
Boozman
Boustany
Brady (TX)
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Buyer
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Carter
Castle
Chabot
Coble
Cole (OK)
Conaway
Crenshaw
Cubin
Culberson
Davis (KY)
Davis, David
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
English (PA)
Everett
Fallin
Feeney
Ferguson
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Hunter
Inglis (SC)
Issa
Jindal
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
LaHood
Lamborn
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Musgrave
Myrick
Neugebauer
Nunes
Paul
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
Ryan (WI)
Sali
Schmidt
Sensenbrenner
Sessions
Shadegg
Shays
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Tancredo
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOT VOTING--12
Berman
Brown (SC)
Davis, Jo Ann
Granger
Kanjorski
McCarthy (CA)
Meehan
Meek (FL)
Miller, George
Ruppersberger
Saxton
Wynn
{time} 1342
Ms. GINNY BROWN-WAITE of Florida, Mr. REYNOLDS, and Mrs. BACHMANN
changed their vote from ``yea'' to ``nay.''
Ms. McCOLLUM of Minnesota and Mr. KUCINICH changed their vote from
``nay'' to ``yea.''
So the previous question was ordered.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. LINCOLN DIAZ-BALART of Florida. Mr. Speaker, on that I demand the
yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. This will be a 5-minute vote.
The vote was taken by electronic device, and there were--yeas 223,
nays 193, not voting 17, as follows:
[Roll No. 146]
YEAS--223
Abercrombie
Ackerman
Allen
Altmire
Andrews
Arcuri
Baca
Baird
Baldwin
Barrow
Bean
Becerra
Berkley
Berman
Berry
Bishop (GA)
Bishop (NY)
Blumenauer
Boren
Boswell
Boucher
Boyd (FL)
Boyda (KS)
Brady (PA)
Braley (IA)
Brown, Corrine
Butterfield
Capps
Capuano
Cardoza
Carnahan
Carney
Carson
Castor
Chandler
Clarke
Clay
Cleaver
Clyburn
Cohen
Conyers
Cooper
Costa
Costello
Courtney
Cramer
Crowley
Cuellar
Cummings
Davis (AL)
Davis (CA)
Davis (IL)
Davis, Lincoln
DeFazio
DeGette
Delahunt
DeLauro
Dicks
Dingell
Doggett
Donnelly
Doyle
Edwards
Ellison
Ellsworth
Emanuel
Engel
Etheridge
Fattah
Filner
Frank (MA)
Giffords
Gillibrand
Gonzalez
Gordon
Green, Al
Green, Gene
Grijalva
Gutierrez
Hall (NY)
Hare
Harman
Hastings (FL)
Herseth
Higgins
Hill
Hinchey
Hinojosa
Hirono
Hodes
Holden
Holt
Honda
Hooley
Hoyer
Inslee
Israel
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (GA)
Johnson, E. B.
Jones (OH)
Kagen
Kanjorski
Kaptur
Kennedy
Kildee
Kilpatrick
Kind
Klein (FL)
Kucinich
Lampson
Langevin
Lantos
Larsen (WA)
Larson (CT)
Lee
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lynch
Mahoney (FL)
Maloney (NY)
Markey
Marshall
Matheson
Matsui
McCarthy (NY)
McCollum (MN)
McDermott
McGovern
McIntyre
McNerney
McNulty
Melancon
Michaud
Millender-McDonald
Miller (NC)
Mitchell
Mollohan
Moore (KS)
Moore (WI)
Moran (VA)
Murphy (CT)
Murphy, Patrick
Murtha
Nadler
Napolitano
Neal (MA)
Oberstar
Obey
Olver
Ortiz
Pallone
Pascrell
Pastor
Payne
Perlmutter
Pomeroy
Price (NC)
Rahall
Rangel
Reyes
Rodriguez
Ross
Rothman
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Salazar
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schwartz
Scott (VA)
Serrano
Sestak
Shea-Porter
Sherman
Shuler
Sires
Skelton
Slaughter
Smith (WA)
Snyder
Solis
Space
Spratt
Stark
Stupak
Sutton
Tanner
Tauscher
Taylor
Thompson (CA)
Thompson (MS)
Tierney
Towns
Udall (CO)
Udall (NM)
Van Hollen
Velazquez
Visclosky
Walz (MN)
Wasserman Schultz
Waters
Watson
Watt
Weiner
Welch (VT)
Wexler
Wilson (OH)
Woolsey
Wu
Wynn
Yarmuth
NAYS--193
Aderholt
Akin
Alexander
Bachmann
Bachus
Baker
Barrett (SC)
Bartlett (MD)
Barton (TX)
Biggert
Bilbray
Bilirakis
Bishop (UT)
Blackburn
Blunt
Boehner
Bonner
Bono
Boozman
Boustany
Brady (TX)
Brown-Waite, Ginny
Buchanan
Burgess
Burton (IN)
Calvert
Camp (MI)
Campbell (CA)
Cannon
Cantor
Capito
Castle
Chabot
Coble
Conaway
Crenshaw
Cubin
Culberson
Davis (KY)
Davis, David
Davis, Tom
Deal (GA)
Dent
Diaz-Balart, L.
Diaz-Balart, M.
Doolittle
Drake
Dreier
Duncan
Ehlers
Emerson
English (PA)
Everett
Fallin
Feeney
Flake
Forbes
Fortenberry
Fossella
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Garrett (NJ)
Gerlach
Gilchrest
Gillmor
Gingrey
Gohmert
Goode
Goodlatte
Graves
Hall (TX)
Hastert
Hastings (WA)
Hayes
Heller
Hensarling
Herger
Hobson
Hoekstra
Hulshof
Hunter
Inglis (SC)
Issa
Jindal
Johnson (IL)
Johnson, Sam
Jones (NC)
Jordan
Keller
King (IA)
King (NY)
Kingston
Kirk
Kline (MN)
Knollenberg
Kuhl (NY)
LaHood
Lamborn
Latham
LaTourette
Lewis (CA)
Lewis (KY)
Linder
LoBiondo
Lucas
Lungren, Daniel E.
Mack
Manzullo
Marchant
McCarthy (CA)
McCaul (TX)
McCotter
McCrery
McHenry
McHugh
McKeon
McMorris Rodgers
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Moran (KS)
Murphy, Tim
Musgrave
Myrick
Neugebauer
Nunes
Paul
Pearce
Pence
Peterson (PA)
Petri
Pickering
Pitts
Platts
Poe
Porter
Price (GA)
Pryce (OH)
Putnam
Radanovich
Ramstad
Regula
Rehberg
Reichert
Renzi
Reynolds
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Ros-Lehtinen
Roskam
Royce
[[Page H2515]]
Ryan (WI)
Sali
Schmidt
Sensenbrenner
Sessions
Shadegg
Shays
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Souder
Stearns
Sullivan
Tancredo
Terry
Thornberry
Tiahrt
Tiberi
Turner
Upton
Walberg
Walden (OR)
Walsh (NY)
Wamp
Weldon (FL)
Weller
Westmoreland
Whitfield
Wicker
Wilson (NM)
Wilson (SC)
Wolf
Young (AK)
Young (FL)
NOT VOTING--17
Brown (SC)
Buyer
Carter
Cole (OK)
Davis, Jo Ann
Eshoo
Farr
Ferguson
Granger
Meehan
Meek (FL)
Meeks (NY)
Miller, George
Peterson (MN)
Saxton
Scott (GA)
Waxman
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). Members are advised 2
minutes remain in this vote.
{time} 1349
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
Stated against:
Mr. COLE of Oklahoma. Mr. Speaker, I was unavoidably absent for
rollcall vote 146 on H. Res. 239, the rule to provide for consideration
of H.R. 985. Had I been present, I would have voted ``nay.''
____________________
[Congressional Record: March 14, 2007 (House)]
[Page H2517-H2543]
WHISTLEBLOWER PROTECTION ENHANCEMENT ACT OF 2007
The SPEAKER pro tempore. Pursuant to House Resolution 239 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the State of the Union for the consideration of the bill, H.R. 985.
{time} 1429
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the State of the Union for the consideration of the bill
(H.R. 985) to amend title 5, United States Code, to clarify which
disclosures of information are protected from prohibited personnel
practices; to require a statement in nondisclosure policies, forms, and
agreements to the effect that such policies, forms, and agreements are
consistent with certain disclosure protections, and for other purposes,
with Mr. Pastor in the chair.
The Clerk read the title of the bill.
The CHAIRMAN. Pursuant to the rule, the bill is considered read the
first time.
General debate shall not exceed 1 hour and 20 minutes, with 1 hour
equally divided and controlled by the chairman and ranking minority
member of the Committee on Oversight and Government Reform and 20
minutes equally divided and controlled by the chairman and ranking
minority member of the Committee on Homeland Security.
The gentleman from Iowa (Mr. Braley) and the gentleman from Virginia
(Mr. Tom Davis) each will control 30 minutes, and the gentleman from
Pennsylvania (Mr. Carney) and the gentleman from Connecticut (Mr.
Shays) each will control 10 minutes.
The Chair recognizes the gentleman from Iowa.
{time} 1430
Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may
consume.
I am proud to be here today to bring to the floor of the House of
Representatives, H.R. 985, the Whistleblower Enhancement Protection Act
of 2007. A month ago today this important bill passed the House
Committee on Oversight and Government Reform unanimously by a vote of
28-0. I strongly support the bill, and I hope it will receive a similar
level of bipartisan support on the floor of the House of
Representatives today. We need to send a strong message that protecting
the rights of whistleblowers is not a Democratic issue, it is not a
Republican issue, it is an issue that impacts the lives and the safety
of every American citizen.
Whistleblowers have long been instrumental in alerting the public and
the Congress to wrongdoing in Federal agencies. In many cases, the
brave actions of whistleblowers have led to positive changes that have
resulted in more responsible, safe and ethical practices. In some
instances, the actions of whistleblowers have even saved lives.
Unfortunately, despite the importance of whistleblowers in ensuring
government accountability and integrity, court decisions by the U.S.
Court of Appeals for the Federal Circuit have undermined whistleblower
protections and have unreasonably limited the scope of disclosures
protected under current law.
The hearings that Chairman Waxman and Ranking Member Davis have been
holding in the Committee on Oversight and Government Reform in the
110th Congress have highlighted the need for expanded protections for
workers who shed light on wrongdoing by government agencies and
departments. Several hearings held by the committee have helped uncover
waste and fraud in government contracting, both here in the United
States, and in Iraq, waste and fraud which has led to the loss of
billions of taxpayer dollars and has jeopardized the safety of
Americans here at home and those serving abroad.
At another hearing, we learned that some officials in the Bush
administration have sought to manipulate Federal climate science,
compromising the health and safety of American families and the future
of the planet solely for political gain.
Perhaps the starkest reminder of the need to protect those who remain
silent in the face of government wrongdoing came at last week's hearing
at Walter Reed, at which we learned about the terrible living
conditions and bureaucratic hurdles that soldiers have endured there.
At the hearing, it became clear that nobody dared to complain about
the squalid living conditions and inadequate care at what is supposed
to be the best military facility in the world because of fear of
retribution.
Because of this fear, it took an expose by a newspaper in order for
action to be taken on these severe and systemic problems, and many of
our Nation's heroes had to suffer there for far too long.
The Whistleblower Protection Enhancement Act of 2007 makes important
changes to existing law that will strengthen protections for government
workers who speak out against illegal, wasteful and dangerous
practices.
The bill protects all Federal whistleblowers by clarifying that any
disclosure pertaining to waste, fraud or abuse, ``without restriction
as to time, place, form, motive, context or prior disclosure,'' and
including both formal and informal communications, is protected.
The bill also gives whistleblowers access to timely action on their
claims, allowing them access to Federal district courts if the Merit
Systems Protection Board does not take action on their claims within
180 days.
In addition, the bill clarifies that national security workers,
employees of government contractors, and those who blow the whistle on
actions that compromise the integrity of Federal science are all
entitled to whistleblower protection.
As we continue to fight terrorism and other national security
threats, this landmark legislation will give whistleblower protections
to national security whistleblowers for the first time. It may be hard
to believe, but currently employees at key government agencies in
charge of protecting the United States, including the FBI, the CIA, and
the Transportation Security Administration, are excluded from
whistleblower protections.
These are the employees who work every day to keep our country safe
and secure. These workers deserve to have the same protection as other
Federal employees, and the American public deserves to know that
workers who come forward with information that is essential to national
security will not be punished for helping to keep us safe.
A good example is former FBI agent Coleen Rowley, Time magazine's
Person of the Year in 2002. Special Agent Rowley graduated from
Wartburg College in Waverly, Iowa, which is located in my district.
Like me, she received her law degree from the University of Iowa
College of Law. She is married and has four children.
After the terrorist attacks on 9/11, Special Agent Rowley wrote a
paper for the Director of the FBI, which laid out in detail how
personnel at FBI headquarters failed to take action on concerns raised
by the Minneapolis field office concerning its investigation of
suspected terrorist Zacarias Moussaoui. These failures, identified by
Special Agent Rowley, could have left the United States vulnerable to
September 11 attacks in 2001. Special Agent Rowley later testified
before the Senate and the 9/11 Commission about these very same
concerns.
Following those hearings, Iowa Senator Chuck Grassley, a Republican
[[Page H2518]]
who has been a proponent of whistleblower protection, pushed for a
major reorganization at the FBI, resulting in the creation of the
Office of Intelligence, which significantly expanded FBI personnel with
counterterrorism and foreign language skills.
Senator Grassley commended the actions of Rowley, saying on the floor
of the Senate last June, ``in typical FBI fashion, the missteps from 9/
11 would have been swept under the rug if it weren't for whistleblowers
like Coleen Rowley . . . it looks to me like she's the only one who did
anything to make sure the FBI was held responsible for its lack of
responsiveness.''
The Whistleblower Protection Enhancement Act also ensures that
employees who work for companies that have government contracts are
protected when they report waste, fraud, and abuse of taxpayer dollars.
This provision is especially important, considering the use of private
contractors by the United States Government has reached an all-time
high, and that spending on Federal contracts has almost doubled since
2000, reaching $400 billion in 2006.
Private companies with government contracts are now performing some
of the most important work of the government, including protecting
civilian workers in Iraq and ensuring the safety of American citizens
in the United States. This bill will help ensure that employees of
government contractors, who report on the abuse of taxpayer dollars or
other wrongdoing, do not have to fear the loss of their jobs or other
retribution.
Finally, Mr. Chairman, this bill clarifies that employees who blow
the whistle on political interference in Federal scientific research
and reports are also entitled to whistleblower protections. It is
essential that we have the best and most accurate scientific research
and information that is possible.
Americans trust that their tax money is funding thorough and adequate
scientific studies that are free from political interference or
manipulation. As lawmakers, we also depend on accurate and unbiased
scientific information to make policy decisions that will impact the
lives and futures of American families.
Protecting government researchers who report actions or policies that
compromise the accuracy and integrity of Federal science is critical to
ensuring the public and the lawmakers are able to make wise and
informed decisions that affect our lives now and will have
repercussions far into the future.
I would like to thank Chairman Waxman and Ranking Member Davis for
their work on this bill in the Committee on Oversight and Government
Reform.
Again, I strongly urge my colleagues to support the passage of the
Whistleblower Enhancement Protection Act today.
Mr. Chairman, I reserve the balance of my time.
Mr. TOM DAVIS of Virginia. Mr. Chairman, today, we take up the
Whistleblower Protection Enhancement Act of 2007. This legislation
would modernize, clarify, and expand the laws protecting Federal
employees who blow the whistle on waste, fraud, and mismanagement in
the Federal Government.
At the outset, I think it is important to thank my colleague from
Pennsylvania (Mr. Platts). Throughout this process, Mr. Platts has been
an unwavering advocate for Federal employees. This bill would not exist
today in this form if not for his steady leadership.
Almost immediately following the 1994 changes in the Whistleblower
Protection Act, it became clear that the Federal Circuit Court of
Appeals would continue to create loopholes where no loopholes were
intended and dilute protections for whistleblowers Congress clearly
intended to protect.
This bill we are considering today develops a new regime governing
whistleblower protections and offers fresh solutions to the continuing
problem of employee retaliation. I am proud this legislation would
allow Federal employees and contractor personnel to pursue their claims
in the Federal district court, to be heard before a jury of their
peers, if no action is taken by the Merit Systems Protection Board
within 180 days.
Under current law, cases filed by employees who believe they have
been retaliated against for blowing a whistle can sometimes end up
languishing before the MSPB for years before a final decision is
issued. H.R. 985 would change the process and allow Federal employees
to reach resolution on this issue one way or the other.
I am disappointed, however, the Rules Committee did not make in order
my amendment to remove from the bill language which would provide for
an ``all circuits'' review of whistleblower claims.
My amendment would have tried to maintain the uniformity in the
consideration of whistleblower cases in the Federal courts by keeping
in place the current requirement that all whistleblower appeals go
through the United States Court of Appeals for the Federal Circuit,
rather than opening up appeals to all circuits.
Without my amendment, Federal employee whistleblowers could end up
possessing a different set of rights and protections based on where
they file their claim. For example, a Border Patrol agent in Texas
could be protected by a different set of whistleblower protections than
a Border Patrol agent in Maine.
I think the underlying legislation already provides sufficient
reforms to the whistleblower protection laws by revising the statute
under which the Federal Circuit reviews whistleblower claims. Going
further in this legislation, removing the requirement that all appeals
must go through one Federal appeals court, is going to, in the long
term, be counterproductive to our policies governing Federal
employment.
I am also interested in the amendment dealing with national security
whistleblowers Mr. Hoekstra filed at Rules, but was not made in order.
While I supported the language Mr. Hoekstra's amendment sought to
strike, I understand many members from the intelligence-related
committees and officials in the intelligence community have concerns
which I believe need to be addressed before this bill moves on to the
Senate.
One additional concern I would like to mention is with section 13 of
the bill. Section 13 would open a whole new area of personnel conflicts
to whistleblower protections. This new language, added to the bill this
year, would make influencing federally funded scientific research a
prohibited personnel practice by specifically identifying the
dissemination of false or misleading scientific or medical or technical
information as an ``abuse of an authority'' that is actionable in
Federal court.
Rather than acknowledging the natural and perfectly healthy tension
that exists between science and policymaking, this section would submit
the ``science versus ethics'' issue to the Federal courts to be
litigated as a personnel issue.
Unlike many on the Democratic side of the aisle who believe only
scientific findings should serve as the foundation for public policy
and decisionmaking, I believe science is just one cog in the policy
decisionmaking process. Science must be balanced against factors such
as the morals of our society and the ethics of individual policymakers,
as well as countless other policy considerations. As I have said
before, I don't believe we should turn the tension between science and
policymaking into a personnel matter that gets litigated by the courts.
In closing, I believe the underlying legislation makes a number of
important positive contributions to Federal whistleblower policy, and I
support this bill.
While I believe we can still make a few refinements to the bill to
make it better, I applaud Mr. Platts' and Mr. Waxman's efforts to move
this bill forward.
Mr. Chairman, I reserve the balance of our time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield 5 minutes to the chairman
of the committee, Mr. Waxman of California.
Mr. WAXMAN. I thank the gentleman from Iowa for yielding me the time
and for managing this bill. He has played a very important role in the
committee in the formulation of this legislation and is far more
knowledgeable than many of us because he has had experience in bringing
whistleblower lawsuits as an attorney.
Mr. Chairman, this bill that we are considering at this time would
[[Page H2519]]
strengthen one of our most important weapons against waste, fraud and
abuse, and that is Federal whistleblower protections. Protecting
whistleblowers is a key component of government accountability.
Federal employees are on the inside. They can see where there is
waste going on or if there is corruption going on. They can see the
signals of incompetent management, and what we want is to enable them
to let us know, those of us in Congress, about these kinds of problems.
So this bill would give them the protections to come forward and, in
effect, blow the whistle on what they know is going on and is not right
to be continued.
But I want to emphasize that one of the most important provisions of
H.R. 985 protects national security whistleblowers.
{time} 1445
It is impossible to overstate how essential this provision will be.
Now, there may be an attempt to try to strike this provision, and I
want to make clear to my colleagues why they should not be misled into
voting for such a motion.
There are a lot of Federal officials who knew the intelligence on
Iraq was wrong. Officials in the CIA and the State Department knew that
Iraq did not try to import uranium from Niger. Officials in the Energy
Department knew the aluminum tubes were not suitable for nuclear
centrifuges. Other officials knew the information from ``Curveball,''
the so-called informant that turned out to be inaccurate, but the
information that he was spreading about so-called mobile weapons labs
were completely bogus.
But none of these officials would come forward. In fact, none of them
could come forward to Congress and share their doubts. If they did,
they could have been stripped of their security clearances, or they
could have been fired.
And we all know what the result has been. Nobody blew the whistle on
the phony intelligence that got us into the Iraq war.
It is imperative that national security employees be protected
against retribution so they will not be afraid to report national
security abuses to Members of Congress. When the intelligence is wrong,
the consequences for our Nation can be immense.
H.R. 985 also extends whistleblower protections to employees of
Federal contractors. Every year, Federal contractors do more and more
of the government's work. In 2005, nearly 40 cents of every Federal
dollar, outside of the entitlements, went to private companies. We need
to encourage the employees of these private companies to report
wasteful spending.
We heard testimony in our Oversight Committee about a Halliburton
truck driver, not just one but many of them, who were told, if they had
a flat tire or some mechanical problem, not to worry about it, torch
the truck. They will just go and buy another one. After all, these were
cost-plus contracts.
Well, this abuse was so wanton that one of the truck drivers finally
blew the whistle. But rather than being protected for speaking out for
the American taxpayer, he was fired.
Finally, passage of this bill would stop this kind of intimidation.
This legislation includes an important provision that will help check
the growing problem of political interference with science. It gives
explicit provisions to protect the Federal employee who reports
instances where Federal scientific research is suppressed or distorted
for political reasons.
Don't buy the argument that this should be struck. We ought to
protect scientists from those that would try to suppress or distort
their scientific work.
The bill is bipartisan. It was cosponsored by Ranking Member and
former Chairman Tom Davis of the Oversight Committee and former
subcommittee Chair Todd Platts. It passed unanimously last month by the
Committee on Oversight and Government Reform.
It is carefully crafted legislation that protects both our national
security and the interests of the American taxpayer, and I urge its
adoption.
Mr. Chairman, I am including with my statement copies of letters
between my Committee, Oversight and Government Reform, and the
Committee on Homeland Security regarding jurisdiction.
House of Representatives,
Committee on Homeland Security,
Washington, DC, March 14, 2007.
Hon. Henry Waxman,
Chairman, Oversight and Government Reform Committee,
Washington, DC.
Dear Henry: I am writing you considering the jurisdictional
interest of the Commttee on Homeland Security in H.R. 985,
the ``Whistleblower Protection Enhancement Act of 2007.''
Section 12 of this legislation provides whistleblower
protections to Transportation Security Administration (TSA)
employees. Under House Rule X, the Committee on Homeland
Security has jurisdiction over the ``[t]ransportation
security activities'' of the Department of Homeland Security
and ``[o]rganization and administration of the Department of
Homeland Security.'' As a result, the Committee on Homeland
Security has a jurisdiction interest in section 12 of the
bill. Moreover, the Committee on Homeland Security received a
sequential referral of a nearly identical bill, H.R. 1317,
the Federal Employee Protection of Disclosures Act,
legislation that was introduced by Rep. Todd Platts (R-PA) in
the 109th Congress. Although the Committee on Homeland
Security has sought a sequential referral of H.R. 985, the
Committee agrees to discharge the legislation in the interest
of clearing this measure as expeditiously as possible for
consideration in the House.
As a condition to our agreement to forgo a markup of this
legislation, you have agreed to include report language to
accompany the bill that clarifies the congressional intent
behind that the term ``public safety'' in 5 U.S.C. 2302
(b)(1),(8), and (9), as amended by H.R. 985, is meant to
cover ``national security'' and ``homeland security.'' This
clarification will ensure that TSA employees who report
security risk, in addition to safety risks or mismanagement
issues, will still receive the whistleblower protections
granted under the bill. Additionally, you have agreed to
include report language to accompany Section 10 of the bill
to ensure Department of Homeland Security employees who work
on intelligence and information-sharing matters are covered
by the ``National Security Whistleblower Rights'' granted
under that section.
Our agreement not to hold a markup is also conditioned upon
our mutual understanding that our decision to waive further
consideration does not, in any way, reduce or otherwise
affect the jurisdiction of the Committee on Homeland Security
over provisions of the bill. Additionally, you have agreed to
support the request of the Committee on Homeland Security to
have its members named as conferees in the event of a
conference with the Senate on this bill.
I ask that you please include in the Congressional Record
during consideration on the floor, a copy of this letter and
a copy of your response acknowledging the Committee on
Homeland Security's jurisdictional interest in this bill and
indicating your support of our agreement expressed in this
letter.
Sincerely,
Bennie G. Thompson,
Chairman.
____
House of Representatives,
Committee on Oversight and Government Reform,
Washington, DC, March 13, 2007.
The Hon. Bennie G. Thompson,
Chairman, House Committee on Homeland Security,
Washington, DC.
Dear Chairman Thompson, I am writing regarding your
Committee's jurisdictional interest in H.R. 985, the
Whistleblower Protection Enhancement Act of 2007. I
appreciate your cooperation in waiving consideration of the
bill by the Committee on Homeland Security in order to allow
consideration of the legislation on the House floor later
this week.
I recognize that your Committee has a valid jurisdictional
interest in section 12 of H.R. 985, as ordered reported by
the Committee on Oversight and Government Reform. Your
decision to forego a markup should not prejudice the
Committee on Homeland Security with respect to its
jurisdictional prerogatives on this or similar legislation. I
will support your request for an appropriate number of
conferees should there be a House-Senate conference on this
or similar legislation.
I have included report language at your request that states
that under the bill, Transportation Security Administration
workers can report dangers to public health and safety,
including those regarding or relating solely to homeland or
national security. Also, the report states that the national
security whistle blower section of the bill provides
whistleblower rights to those individuals whose job functions
make them eligible for the protections of this section even
though their agencies are not specified, such as intelligence
analysts and information sharing employees with access to
classified information within the Department of Homeland
Security's Office of Intelligence and Analysis.
Finally, I will include a copy of your letter and this
response in the Congressional Record when the legislation is
considered by the House.
Thank you for your assistance.
Sincerely,
Henry A. Waxman,
Chairman.
Mr. PLATTS. Mr. Chairman, I yield 4 minutes to the gentleman from
Michigan (Mr. Hoekstra), the distinguished
[[Page H2520]]
ranking member of the House Permanent Select Committee on Intelligence.
Mr. HOEKSTRA. Mr. Chairman, I appreciate the efforts to enhance
protection for whistleblowers in the intelligence community, a goal
that I wholeheartedly endorse. It is important that personnel within
the intelligence community have appropriate opportunities to bring
matters to Congress so long as the mechanisms to do so safeguard highly
sensitive classified information and programs. The bill before us
raises significant issues in doing so that need more considered review.
As chairman of the Permanent Select Committee on Intelligence during
the last Congress, I learned firsthand from whistleblowers about
intelligence programs that the administration had not reported to the
Intelligence Committees, despite its statutory duty to keep us fully
and currently informed. I communicated my strong concerns directly to
the President. I would vigorously defend the individuals who provided
me with this important information from even the slightest reprisal.
So I strongly support the underlying intention of the provisions of
the bill intended to protect the intelligence community. Unfortunately,
however, that part of the bill was not coordinated with HPSCI, and it
suffers from a number of problems that I believe need to be fixed.
First, the bill would conflict with the provisions of the existing
Intelligence Community Whistleblower Protection Act of 1998, which has
already provided specific mechanisms to permit whistleblowers to come
to Congress, while simultaneously protecting sensitive national
security information from unauthorized disclosure to persons not
entitled to receive it.
Second, the bill violates the rules of the House by encouraging
intelligence community personnel to report highly sensitive
intelligence matters to committees other than the Intelligence
Committees, which were created to solely and appropriately deal with
and safeguard information regarding sensitive intelligence programs.
This is simply not a jurisdictional issue. The real issue is one of
protecting highly classified intelligence programs and ensuring that
any oversight is conducted by Members and staff with the appropriate
experiences, expertise, and clearances. Our intelligence oversight
should be conducted to determine how best to enhance our national
security, protect civil liberties, and not to get press coverage.
Third, this bill would make every claim of a self-described
whistleblower, whether meritorious or not, subject to extended and
protracted litigation. It would also substantially alter the
application of the judicially established state secrets privilege in
those cases, forcing the government to choose between revealing
sensitive national security information to defend itself or losing in
court. Judges recognized the privilege precisely because they
understood that such a Hobson's choice is fundamentally improper and
unfair and could harm national security interests. The current law
works to screen frivolous whistleblower claims and recognizes that our
national security interest should not be managed by lawsuit. Those
considerations must continue to be protected.
I agree very strongly with the principle that intelligence community
whistleblowers should be protected from reprisal, and would look
forward to working with the Oversight and Government Reform Committee
to accomplish this goal. However, until those changes are made, and
those issues are addressed, I would encourage my colleagues to vote
``no'' on this bill.
Mr. BRALEY of Iowa. Mr. Chairman, I yield 4 minutes to my
distinguished colleague from Maryland, Mr. Cummings.
Mr. CUMMINGS. Mr. Chairman, I rise in support of the Whistleblower
Protection Enhancement Act of 2007, which I have cosponsored.
To say the least, this administration has not prioritized openness in
government, and I was not surprised to learn that the President is
opposed to the Whistleblower Protection Enhancement Act.
I am similarly not surprised to learn that the President and many of
his colleagues here in the Congress have threatened that by affording
our Federal employees whistleblower protections, we are also
threatening national security. This administration has consistently
used security threats to strike fear into the public's consciousness.
But let me be clear: Claims that the legislation we are considering
here today would threaten national security are baseless. If anything,
the opposite is true.
As a member of the House Armed Services Committee, I know how vitally
important it is for Federal officials to be able to share their
knowledge and their firsthand experience with the Congress. We now know
that, going into the Iraq war, Federal officials at the CIA and the
State Department were aware that the pre-war intelligence about Iraq
purporting to show that the nation had weapons of mass destruction was
wrong.
Thousands of Americans and Iraqi lives and billions of American
taxpayer dollars could have been saved if these individuals had been
able to share their knowledge with a Congress willing to listen to them
and protect them from retribution. But, lacking whistleblower
protections, they were afraid to do so.
Recognizing the critical need for Federal employees to communicate
openly with the legislative branch, Congress in 1912 enacted the Lloyd-
LaFollette Act. And that act, which has never been repealed, by the
way, affords all Federal employees, including employees at the national
security agencies, the right to contact Members of Congress.
The statute states as follows: ``The right of employees, individually
or collectively, to petition the Congress or a Member of Congress or to
furnish information to either House of Congress or to a committee or
Member thereof may not be interfered with or denied.''
The statute's language was intentionally drafted to be broad because
Congress recognized in 1912, as we recognize today, the compelling need
for Federal employees to exercise their rights to free speech.
But the law clearly does not go far enough. Consider the case of FBI
Special Agent Bassem Youssef. According to a Washington Post article
from July 18, 2006, an internal investigation conducted by the United
States Justice Department concluded that Youssef, the FBI's highest
ranking Arabic speaker, was blocked from a counterterrorism assignment
in 2002 after he had met with U.S. Representative Wolf and met with FBI
Director Mueller to discuss Youssef's complaints with regards to the
way the war on terror was being conducted.
Mueller had approved a transfer for Youssef just days before the
meeting, but it never occurred and Youssef was never informed of
Mueller's decision, according to the report.
Investigators also said that the FBI has provided no rationale or
basis for its failure to promote Youssef, although one former senior
FBI manager said Mueller was appalled that Youssef had complained to a
Congressman about his treatment.
Because of this retaliation, we lost 4 years of expertise for the war
on terror from a highly qualified Arab American agent. Once the FBI's
top Arabic translator, Youssef is now simply processing documents.
Under current law, Youssef cannot pursue legal action for the
retaliation. The Whistleblower Protection Enhancement Act of 2007 would
rectify this situation.
Congress has a mandate to oversee the functions of the executive
branch to ensure that government runs as effectively and efficiently as
possible, but we cannot fulfill this mandate if we cannot get reliable
information, and we cannot get that information if people must put
their lives and careers on the line.
Mr. PLATTS. Mr. Chairman, I yield myself as much time as I may
consume.
Mr. Chairman, H.R. 985, the Whistleblower Protection Enhancement Act,
is a bipartisan bill which seeks to restore protections for civil
servants who report illegalities, gross mismanagement and waste, and
substantial and specific dangers to the public health and safety.
H.R. 985 contains many of the provisions of legislation which I
introduced during the 109th Congress, H.R. 1317. It represents
consensus language crafted through bipartisan negotiations among
myself, Chairman Waxman, Ranking Member Davis, Representative Van
[[Page H2521]]
Hollen, as well as the majority and minority staffs of the Oversight
and Government Reform Committee, and interested stakeholders groups
such as the Government Accountability Project. I certainly would like
to thank all who have been involved in this process.
To provide context for the legislation we are considering today, it
is important to review the legislative history in the area of
whistleblower protections for Federal employees.
As a result of finding that the civil service protections of the time
were inadequate, Congress, in the first Bush administration, enacted
into law the Whistleblower Protection Act, WPA, of 1989, which
expressly stated that ``any protected disclosure of waste, fraud and
abuse by a Federal employee is covered by the law.''
Unfortunately, as interpreted by the Merit Systems Protection Board
and the Federal circuit court, loopholes began to develop in the WPA.
Accordingly, Congress strengthened the law in 1994.
It is noteworthy that the report accompanying the WPA Amendments of
1994 expressed great frustration with the way the WPA was being
interpreted. According to the report, it states, ``Perhaps the most
troubling precedents involved the Board's inability to understand that
'any' means 'any.' The WPA protects any disclosure evidencing a
reasonable belief of specified misconduct, a cornerstone to which the
MSPD remains blind.
{time} 1500
``The only restrictions are for classified information or material,
the release of which is specifically prohibited by statute. Employees
must disclose that type of information through confidential channels to
maintain protection. Otherwise, there are no exceptions.''
Unfortunately, we are once again largely back to where we started.
Since the 1994 amendments, 177 whistleblower cases have come before the
Federal Circuit Court; however, only two whistleblowers have prevailed.
Among the reasons are a number of decisions which have continued to
create exceptions to the law, including decisions stating that an
employee is not protected by the WPA if the employee directs criticism
to other witnesses or a supervisor in an attempt to start the process
of challenging misconduct, or the information disclosed was done in the
course of the employee's ordinary job duties, or the information
disclosed has already been raised by someone else.
In addition, the Federal Circuit Court has stated in one case that:
For a Federal employee to reasonably believe there is evidence of
waste, fraud, and abuse, as required by the law, he or she must
overcome with irrefragable proof the presumption that the agency was
acting in good faith.
This is an unheard of legal standard, defined in the dictionary as
``impossible to refute.'' In other words, the agency pretty much has to
admit to the waste, fraud, or abuse.
H.R. 985 would clarify congressional intent that any whistleblower
disclosure includes disclosures ``without restriction to time, place,
form, motive, context, or prior disclosure made to any person by an
employee or applicant, including a disclosure made in the ordinary
course of the employee's duties.'' In addition, H.R. 985 would end any
uncertainty about the irrefragable proof standard, making it clear that
the ``substantial evidence standard'' applies to all five categories
for legally protected whistleblowing disclosures. Appellate courts
could not impose additional burdens for a particular category, as I
understand occurred in the case of White v. Department of Air Force
with respect to ``gross mismanagement.''
Other provisions within H.R. 985 which are either identical or
similar to provisions within previous versions of this legislation
include:
Allowing employees the option to have their claims decided in Federal
District Court if the Merit Systems Protection Board does not act on a
claim within 180 days;
Ending the monopoly jurisdiction of the United States Court of
Appeals for the Federal Circuit over appeals under the Whistleblower
Protection Act;
Conducting a GAO study on the revocation of security clearances in
retaliation for whistleblowing;
Extending whistleblower protections to the Transportation Security
Administration baggage screeners;
Enhancing whistleblower protections for employees of government
contractors;
Codifying an anti-gag rule that was first included in the Treasury
Appropriations bill for 1988 and every year thereafter; and,
Continuing protections for whistleblowers who were subjected to
prohibited personnel actions prior to their agency or unit being
exempted from the WPA.
In conclusion, I would like to once again thank each of the parties
who have been involved in the ongoing development of this critically
important legislation. I would also like to thank those courageous
citizens who have blown the whistle on waste, fraud, and abuse in the
Federal Government. If we truly want to eliminate waste, fraud, and
gross mismanagement throughout the Federal Government, then we need to
empower and protect our Federal employees who are on the front lines of
government operations and best positioned to witness this waste, fraud,
and gross mismanagement. This legislation provides such empowerment and
protection. I urge a ``yes'' vote.
Mr. Chairman, I reserve the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I thank the gentleman for his
insightful comments, and I reserve the balance of my time.
Mr. PLATTS. Mr. Chairman, does the gentleman from Iowa have any
additional speakers?
Mr. BRALEY of Iowa. Yes.
Mr. PLATTS. Mr. Chairman, I will then continue to reserve the balance
of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield 3\1/2\ minutes to the
distinguished gentlewoman from Texas (Ms. Jackson-Lee).
Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished
gentleman for his leadership, and I thank all of the cosponsors that
have brought this legislation, H.R. 985, to the floor, Representatives
Henry Waxman, Todd Platts, Chris Van Hollen, and Thomas Davis, and
certainly a number of the total of 29 cosponsors, and the fact that
this committee voted the whistleblower protection out unanimously.
We who are members of the Homeland Security Committee, along with
Chairman Thompson, and I know we have been working on this with the
ranking member as well, stand in support of this legislation. I know
that we will be yielded time shortly, but I am delighted to be able to
share my thoughts on the importance of H.R. 985, which would extend
whistleblower protection to Federal workers who specialize in national
security issues. It would also ensure that employees who work for
companies with government contracts are protected when they report
waste, fraud, and abuse of U.S. taxpayer dollars.
Protecting scientific whistleblowers, this legislation would extend
whistleblower protection to Federal employees who disclose actions
related to the validity of federally funded scientific research and
analysts. Many of us recognize and remember the Los Alamos incident of
a couple years ago still was never, if you will, explored and never
settled.
This also would override several court and administrative decisions
that undermine existing whistleblower protection, provide whistleblower
access to Federal District Courts if the Merit Systems Protection Board
or the Inspector General does not take action on their claims within
180 days.
This is good news to the Homeland Security Department and
particularly the transportation security officers. Contrary to
assertions by the opponents of the bill, TSOs do not have any
meaningful whistleblower rights. The truth is, TSOs do not enjoy full
whistleblower protection; specifically, transportation security
officers enjoy little more than minimal whistleblower protections
deriving from a memorandum of understanding entered into when the TSA
was still part of the Department of Transportation. Under the MOU,
screeners can only bring a claim to the office of a special counsel;
they do not have the right of appeal or to seek independent review by
another agency or court.
It is important to note that in 2004 the Merit Systems Protection
Board
[[Page H2522]]
ruled in a case, Schott v. Department of Homeland Security, that the
Homeland Security Act does not provide TSA screeners the right to bring
a claim before the MSPB, even though such rights were enjoyed by all
other department employees.
This is crucial. I have been working on this issue for quite a while.
The No Fear Act, which indicated or had to do with discrimination
against workers at the Environmental Protection Agency, generated, even
though it is a bill on discrimination of Federal employees that
generated from whistleblower employees at the Environmental Protection
Agency that didn't have the necessary protection to talk about issues
that dealt with regular issues of research, but also on the issue of
security. Let me quickly say that the EPA had a similar problem where
it also faced no protection of those employees, and the No Fear Act
came out of that which had to do with racial discrimination against
Federal employees.
But NASA, for example, legislation that I wrote dealing with the
International Space Station to give protection to NASA employees to
save lives and also to protect them in case of issues that they were
dealing with relating to national security.
All employees should feel free to tell the truth. All employees
should be protected, particularly Federal employees, particularly in
this time in the backdrop of 9/11. Tell the truth, be protected, and
the whistleblower protection will allow us to run this country in the
right way, save lives, and have employees that are Federal Government
employees gives us the fact so we can do the right thing. Support H.R.
985.
Mr. Chairman, I rise today in strong support of H.R. 985, the
``Whistleblower Protection Enhancement Act of 2007,'' which extends
whistleblower protections to federal employees and contractors working
in the area of national security and intelligence, including screeners
at the Transportation Security Administration (TSA).
Mr. Chairman, there is a tremendous need to protect our best sources
for identifying waste fraud and abuse--federal workers and contractors.
H.R. 985 treats Transportation Security Officers (TSOs), sometimes
called ``screeners,'' the same as all other Department employees by
giving them full whistleblower protections, which TSOs currently do not
have.
Mr. Chairman, contrary to assertions by opponents of the bill, TSOs
do not have any meaningful whistleblower rights. The truth is TSOs do
not enjoy full whistleblower protections. Specifically, TSOs enjoy
little more than minimal whistleblower protections deriving from a
Memorandum of Understanding (MOU) entered into when TSA was still part
of the Department of Transportation.
Under this MOU, screeners can only bring a claim to the Office of
Special Counsel; they do not have a right of appeal or to seek
independent review by another agency or court.
Mr. Chairman, in 2004, the Merit Systems Protection Board (MSPB)
ruled in Schott v. Department of Homeland Security, that the Homeland
Security Act does not provide TSA screeners the right to bring a claim
before the MSPB, even though such rights were enjoyed by all other
Department employees.
Thus, as you can see Mr. Chairman, TSOs are treated differently than
other Department of Homeland Security personnel--including fellow
employees within TSA.
This bill allows a whistleblower to seek relief in federal circuit
court, if his or her claim has not been acted upon within 6 months. In
addition, H.R. 985 permits the whistleblower to bring an appeal on
their case to any federal circuit court of appeals having in personam
jurisdiction, not just the Court of Appeals for the Federal Circuit as
is the case under current law.
I am also pleased that this bill provides the same rights to the
Department's Office of Intelligence and Analysis employees as it does
to intelligence employees in other agencies. I do not have to tell you,
Mr. Chairman, that whistleblowers in the intelligence community must be
careful when they disclose certain information.
H.R. 985 set forth procedures which enable whistleblowers to assert
their claims, while at the same time adequately protecting any
sensitive or classified information involved with such claims.
Mr. Chairman, I note that H.R. 1, which passed the House in January,
seeks to improve the poor morale problem at TSA by giving TSO employees
whistleblower and collective bargaining rights. These collective
bargaining rights are comparable to other law enforcement officers and
others within the Department, such as the Border Patrol, Customs and
Border Protection Officers.
Mr. Chairman, as a senior member of the Homeland Security Committee
and chair of the Subcommittee on Transportation Security and
Infrastructure Protection, I am proud to support H.R. 985. This bill
will help the federal government keep make America safer and more
secure by encouraging and protecting employees who come forward to
report waste, fraud, wrongdoing, or abuse of vital and limited
government resources. I urge all members to join me in voting for this
important legislation.
Mr. PLATTS. Mr. Chairman, I yield myself such time as I may consume.
In the report language from the Committee on Oversight and Government
Reform, there is a well-stated argument about the importance of this
legislation, why we need it, and why we need it for national security
employees as well. The report reads as follows:
``A key component of government accountability is whistleblower
protection. Federal employees are on the inside. They can see when
taxpayer dollars are wasted and are often the first to see the signals
of corrupt or incompetent management.
``Unfortunately, whistleblowers too often receive retaliation rather
than recognition for their courage. They need adequate protections so
they are not deterred from stepping forward to blow the whistle.
``There are many Federal Government workers who deserve whistleblower
protection, but perhaps none more than national security officials.
These are Federal Government employees who have undergone extensive
background investigations, obtained security clearances, and handled
classified information on a routine basis. Our government has concluded
that they can be trusted to work on the most sensitive law enforcement
and intelligence projects, yet these officials receive no protection
when they come forward to identify abuses that are undermining our
national security efforts.''
I think the report language well states the case for this bill and
the importance of us adopting this legislation and moving the process
forward.
Mr. Chairman, I reserve the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield 2 minutes to the
distinguished gentleman from Illinois (Mr. Davis).
(Mr. DAVIS of Illinois asked and was given permission to revise and
extend his remarks.)
Mr. DAVIS of Illinois. Mr. Chairman, I rise in strong support of H.R.
985, and I do so for a number of reasons. We all know that there are
individuals who would love to simply be forthcoming with information.
All of us have been places, all of us have worked places, all of us
have known things, and we have all wanted to operate free and
uninhibited. But unless individuals have the absolute protection, in
many instances, of knowing that whatever it is that they would reveal
that when they come forth that nobody can use that against them,
because they also have concerns of their own relative to being able to
maintain the job that they have got to take care of the security needs
of their family.
Whistleblower protection could have been used more effectively even
as we debated the issue of Iraq, as we made decisions based upon
intelligence that supposedly we had but intelligence that obviously we
did not have.
Whistleblower protection becomes very effective in helping to root
out waste, fraud, and abuse. Some of the hearings that I have sat in on
where we have discussed how we made use of our contracting resources in
Iraq, for example, makes one wonder if we were just giving away the
valuable resources of the American people.
So this legislation not only protects the taxpayers' money, but it
also protects our troops, our soldiers, those who are in danger
oftentimes because accurate information has not been deployed. Mr.
Chairman, I urge passage of 985.
Mr. PLATTS. Mr. Chairman, I continue to reserve the balance of my
time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may
consume.
Mr. Chairman, I see some of my distinguished colleagues here today,
specifically Ranking Member Davis, Congressman Shays. And to prepare
for this debate today, Mr. Chairman, I watched a movie, ``The
Insider,'' last night, because it was a classic example
[[Page H2523]]
of why we need whistleblower protection in this country. The sight of
those seven tobacco company CEOs standing before the committee on which
I am proud to serve, raising their hands and swearing that tobacco and
nicotine is not addictive, and the compelling personal story of Jeffrey
Weigand and the struggle he and his family went through are why we need
to support this bill today.
One of the reasons why we are here today is because of the compelling
stories of dozens of national security whistleblowers from multiple
Federal agencies who have provided sobering and exhaustive stories
about retaliation and retribution for speaking the truth.
{time} 1515
These accounts have been well documented before the committees of
this House.
Michael German was a highly regarded FBI agent working on domestic
terrorism cases for 16 years before quitting in frustration in 2004.
His whistleblowing concerned a case that, according to NBC's Dateline,
``involved a potential nightmare scenario: meetings between a home-
grown militia-type terrorism organization and an Islamic fundamentalist
group during which they discussed possible cooperation.''
Mr. German alleges that the FBI fumbled the case and then, after he
blew the whistle, falsified records in order to cover its mistakes. He
reported his concerns to his superiors and reportedly faced retaliation
for doing so, though a Department of Justice Inspector General report
substantiated many of his claims.
Mr. Chairman, I reserve the balance of my time.
Mr. PLATTS. Mr. Chairman, I reserve the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield 3 minutes to the
distinguished gentleman from Michigan (Mr. Stupak).
Mr. STUPAK. Mr. Chairman, I thank the gentleman for yielding,
allowing me an opportunity to speak about this issue here before us.
I want to thank Mr. Waxman and the committee for reporting an
excellent bill. The Whistleblower Protection Enhancement Act is a long
overdue piece of legislation that will go a long way towards correcting
some of the abuses of the past and updating the whistleblower
protection system to face the challenges of the present.
For too long protections passed by Congress for good-faith
whistleblowers have been chipped away by executive agencies and the
courts. Court decisions have limited the scope of whistleblower
protections in a way that betrays the spirit of the original law. This
bill will clarify the rights of whistleblowers, including the right to
a prompt court proceeding if their employer challenges their right to
the protection.
The bill also protects whistleblowers who work in the national
security sector or who work for Federal contractors. This is a critical
provision. Under current law, national security employees have next to
no protection if they are retaliated against for reporting waste or
corruption. This is an extremely dangerous situation. If corruption or
abuse of power is happening in our intelligence and security agencies,
it should be a concern for all Americans. Employees who report abuses
in these sectors are doing a service to our national security. I am
glad to see that this bill would finally protect them.
I am also pleased to see protections strengthened for Federal
contractors. The growth of contracting under the current administration
has been astronomical. Under President Bush the Federal Government is
now spending nearly 40 cents of every discretionary dollar on contracts
with private companies, a record level. Much of this money has been
spent without any kind of oversight that would apply within a Federal
agency.
Protection for whistleblowers in the contracting sector is key for
improving congressional oversight and bringing potential waste and
mismanagement under control.
Let me be clear. This bill doesn't just protect whistleblowers. It
protects all Americans.
As chairman of the Oversight and Investigations Subcommittee of the
Energy and Commerce Committee, I know that every congressional
investigation relies on the willingness of individual witnesses to
speak up about what they have seen. These individuals risk their
careers and their reputations to expose instances of corruption, waste,
and abuse within our government. We owe them a debt of gratitude for
their courage. This bill is an important step towards making sure that
those individuals have the protection they deserve.
Mr. PLATTS. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I would just like to again thank my colleagues who have
worked on this and give special thanks to the staff of the majority and
minority sides of the Oversight and Government Reform Committee both
this session and for the last two sessions that I have been involved in
this issue. We certainly wouldn't be here today without the tremendous
work of the staff as well as the leadership of then-Chairman Davis,
now-Ranking Member Davis, and current Chairman Waxman. So I appreciate
everyone's participation in moving this very important issue forward.
This truly is about doing right by our courageous Federal employees
who are willing to come forward when they see wrong and do right on
behalf of their fellow citizens.
Mr. Chairman, I yield back the balance of my time.
Mr. BRALEY of Iowa. Mr. Chairman, I yield myself such time as I may
consume.
I also want to thank my colleagues for the bipartisan spirit of
support for this bill.
I want to just add a few more names to the record, in the remaining
time that I have available, of courageous whistleblowers. These are not
hypothetical situations we are talking about.
One of them, Richard Levernier, was employed at the Department of
Energy for 22 years and was in charge of testing security at U.S.
nuclear weapons facilities. Working through normal DOE channels, he
tried for years to get his superiors to address security weaknesses
that might allow terrorists to successfully assemble and detonate a
nuclear device at one of the facilities. But his superiors declined to
acknowledge that vulnerabilities existed.
When he faxed two unclassified Inspector General reports to the
press, DOE suspended his security clearance. At the time he was 2 years
away from retirement and eligible for a full pension. After he filed a
lawsuit against DOE for unjust termination, the Office of Special
Counsel conducted an investigation and concluded that the harassment
against Levernier constituted a systematically illegal reprisal. The
OSC also found a substantial likelihood that his underlying charges
were correct.
Another brave individual, Russell Tice, a former intelligence agent
at the National Security Agency, worked for 20 years in special access
programs known as ``black world programs and operations.'' He had his
security clearance revoked in May, 2005, after alerting his superiors
of suspicious activity by a coworker. NSA later dismissed him after he
raised questions about the legality of some NSA ``black world''
programs, including the eavesdropping by the Defense Department and the
NSA on American citizens. Mr. Tice wanted to talk to Congress about
what he feels are further abuses by the NSA, but has not been allowed
to do so.
Specialist Samuel J. Provance's unit in Iraq was instructed to
interrogate detainees in a way that he thought was immoral and
inappropriate, and he told his superiors. Instead of investigating his
claims, his superiors demoted him.
And, finally, Lieutenant Colonel Anthony Shaffer was demoted and his
security clearance stripped after he made protected disclosures to the
9/11 Commission about Able Danger, a pre-9/11 operation for combating
al Qaeda, and explained that there were DOD and DIA failures regarding
9/11.
This is not a hypothetical problem. Federal whistleblowers are being
silenced, and instances of waste, fraud, and abuse are not being
exposed. That is why I call on all my colleagues to support this bill.
Mr. Chairman, I yield back the balance of my time.
The Acting CHAIRMAN (Mr. Ross). The gentleman from Pennsylvania (Mr.
Carney) and the gentleman from Connecticut (Mr. Shays) each will
control 10 minutes.
The Chair recognizes the gentleman from Pennsylvania.
[[Page H2524]]
Mr. CARNEY. Mr. Chairman, I yield myself such time as I may consume.
Mr. Chairman, I would like to commend Chairman Waxman, Chairman
Thompson, and others for their work on this long overdue and sorely
needed bill.
As chairman of the Homeland Security Subcommittee on Management,
Investigations, and Oversight, I have a vested interest in H.R. 985's
passage. I would like to thank Chairman Thompson for allowing me to
manage our committee's allotted time on the bill.
This bill extends whistleblower protections to Federal employees who
work on national security mainly in the intelligence area and workers
in the Transportation Security Administration, especially screeners, as
well as to Federal contractors.
As Chairman Waxman and others have noted, there is a tremendous need
to extend whistleblower protections for Federal workers or contractors,
our best sources for shining light on waste, fraud, and abuse.
This bill treats transportation security officers, or TSOs, sometimes
called ``screeners,'' the same as all other Department of Homeland
Security employees by giving them full whistleblower protections, which
TSOs currently do not have.
Mr. Chairman, others will tell you that TSOs have whistleblower
rights. This is debatably true on paper, but it has not been true in
practice.
The truth is, TSOs do not enjoy full whistleblower protections. TSOs
have limited whistleblower protections that come from a memorandum of
understanding, or MOU, that was entered into when the TSA was still
part of the Department of Transportation. Under the MOU, TSOs,
transportation screeners, can only bring a claim to the Office of
Special Counsel. They do not have a right of appeal or independent
review by another agency or court.
In 2004, while reviewing a TSO whistleblower claim in the case of
Schott v. The Department of Homeland Security, the Merit Systems
Protection Board, MSPB, ruled that the Homeland Security Act does not
provide TSOs with the right to MSPB review. Other DHS employees enjoy
the right to MSPB review.
Thus, as you can see, Mr. Chairman, the TSOs are currently treated
differently than other DHS personnel, including their fellow employees
within TSA.
This bill allows a whistleblower to go to court if their claim has
not been acted upon within 6 months. This bill permits the
whistleblower to bring an appeal on their case to any Federal Court of
Appeals having proper jurisdiction over the case, not just the Court of
Appeals for the Federal Circuit, as the law now stands.
I am also pleased that this bill provides the same rights to the
Office of Intelligence and Analysis employees at DHS as it does to
intelligence employees in other agencies. As we know, whistleblowers in
the intelligence community must be careful when they disclose certain
information. This bill helps govern how these intelligence-related
employees bring their claims while also adequately protecting any
sensitive or classified information that may be involved with their
claims.
Mr. Chairman, I want to note that H.R. 1, which passed the House in
January, tries to fix TSA's poor morale problem by giving TSOs
whistleblower rights and collective bargaining rights. The collective
bargaining rights are comparable to other law enforcement officers and
others within the DHS, such as Border Patrol and CBP officers.
Mr. Chairman, I am happy to vote for this bill as it not only makes
America safer and more secure, but it also allows for all employees to
report waste, fraud, or abuse of our vital and limited government
resources.
Mr. Chairman, I reserve the balance of my time.
Mr. SHAYS. Mr. Chairman, I yield myself such time as I may consume.
It is a pleasure to share this debate with Congressman Carney and to
know that former Chairman Davis, now ranking member, and former Ranking
Member Waxman, now chairman, have worked so closely together. And
tremendous kudos to Todd Platts for the work that he has done on this
legislation. This is a bipartisan effort for a very real reason,
whistleblowers need this protection.
All Federal employees are ethically bound to expose violations of
law, corruption, waste, and substantial danger to public health or
safety. But meeting that obligation to ``blow the whistle'' on
coworkers and superiors has never ever been easy.
{time} 1530
Breaking bureaucratic ranks to speak unpleasant and unwelcome truths
takes courage and risks involving the wrath of those with the power and
motive to shoot the messenger. Yet seldom in our history has the need
for the whistleblower's unfiltered voice been more urgent, particularly
in the realms of national security and intelligence. Extraordinary
powers needed to wage war on our enemies could, if unchecked, inflict
collateral damage on the very rights and freedoms we fight to protect.
The use of expansive executive authority demands equally expansive
scrutiny by Congress and the public. One absolute essential source of
information to sustain that oversight is whistleblowers.
But those with whom we trust the Nation's secrets are too often
treated like second-class citizens when it comes to asserting their
rights and responsibilities to speak truth to power. Exempted from
legal protections available to most other Federal employees under the
Merit System Protection Board, referred to as the MSPB, national
security whistleblowers must traverse a confusing maze of inconsistent
regulations and procedures that too often afford them far less process
than is due.
The legislation before us today takes the important step of creating
a procedure for whistleblowers handling sensitive national security
information, to have their claims investigated and adjudicated on a
timely basis. These claims would be investigated by the agency
Inspector General, as they are now, who will keep all classified
information secure, while providing a fair and independent mechanism
for investigation and adjudication. Should the Inspector General, and
we have an Inspector General in each of these agencies, not reach a
timely decision, or the employees wish to appeal, our legislation
allows the appropriate Federal Circuit Court to hear the case.
This new approach will give these employees effective protection,
while at the same time ensuring sensitive and classified information
stays secure.
While I believe an amendment to bring the Department of Homeland
Security intelligence-related employees under the same provisions as
employees of intelligence agencies such as the CIA or FBI should have
been made in order, I am grateful we are finally moving legislation
that will allow employees who have faced whistleblower retaliation to
get on with their lives.
I also believe suspension or revocation of a security clearance has
the same chilling effect as demotion or firing, but clearance actions
are virtually unreviewable. Those with whom we trust the Nation's
secrets should not be second-class citizens when it comes to asserting
their rights and obligations to speak truth to power. Employees should
never face termination or harassment for acting courageously to
identify improprieties in the workplace, especially when their
observations could help improve safety or eliminate waste, abuse or
fraud.
Another important step this legislation takes is to expand
whistleblower protections to Transportation Security Administration,
TSA, screeners for the first time, and that is why the Homeland
Security Committee has been given time for this debate. TSA baggage
screeners currently do not have whistleblower rights, and this bill
will extend to screeners the same protections that all other Department
of Homeland Security employees enjoy.
With the full whistleblower protections of this bill, TSA workers
could report violations of law, mismanagement, waste, abuse of
authority, or dangers to public health and safety, including those
regarding or relating solely to homeland or national security.
The bottom line is with more power to the executive branch must come
more oversight. That is why I strongly support this legislation. I
think that is why this legislation is strongly supported on both sides
of the aisle.
Mr. Chairman, I reserve the balance of my time.
[[Page H2525]]
Mr. CARNEY. Mr. Chairman, I yield 4 minutes to the distinguished
gentlelady from the State of Texas (Ms. Jackson-Lee).
Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the distinguished
gentleman for yielding.
Mr. Chairman, I thank Mr. Carney for his leadership and work, along
with, as I mentioned earlier, the chairman of the full Committee on
Homeland Security, Mr. Thompson, and the ranking member.
There is no doubt that whistleblower protection is intimately
interwoven with the work and the issues and the mission and obligations
of the Homeland Security Department and the Homeland Security
Committee, both in the House and the other body. We have too often seen
debacles occurring, tragically, and I believe with a clean
whistleblower protection, where workers are aware of their rights, we
are enhancing the security of America.
This bill in particular responds to the transportation security
officers, sometimes called screeners. As the chairwoman of the
Subcommittee on Transportation Security with oversight over our
transportation security screeners, it is clear that giving them full
whistleblower protection is crucial, and it is also clear that they do
not have it now.
Others will tell you that TSOs have whistleblower protection rights.
They do not. While this may be true on paper, it is not true in
practice. The truth is that transportation security officers do not
enjoy full whistleblower protections. Specifically TSOs have limited
whistleblower protections that come under a memorandum of
understanding, an MOU, that was entered into when TSA was still part of
the Department of Transportation. Under the MOU, TSOs can only bring a
claim to the Office of Special Counsel. They do not have a right of
appeal or independent review by another agency or court.
What that means, Mr. Chairman, is they can be fired. So if a
transportation security officer sees a breach at one of the thousands
upon thousands of airports around America, they have no protection to
protect the traveling public.
In 2004, while reviewing a TSO whistleblower claim in the case of
Schott v. The Department of Homeland Security, the Merit System
Protection Board ruled that the Homeland Security Act does not provide
TSOs with the right to MSPB review, which review rights are enjoyed by
other department employees.
Thus, as you can see, Mr. Chairman, this bill is crucial to the
transportation security officers, who are treated more differently than
any other Department of Homeland Security personnel, including their
fellow employees within TSA. The bill allows a whistleblower to go to
court if their claim has not been acted upon within 6 months.
There is much that the TSA screener says as he or she watches day
after day at whether the procedures that we have in place really work.
In fact, I know there are procedures that go on at the screening site
where it is crucial that an astute, well-trained TSA employee,
screener, can in fact be able to enhance the security of America by
telling the truth.
I am glad Mr. Carney is chairing our Management Subcommittee, because
he is going to be talking about training issues. They are crucial. This
bill permits, Mr. Chairman, as I close, the whistleblower to bring an
appeal on their case to any Federal Court of Appeals having proper
jurisdiction over the case, not just a Court of Appeals for the Federal
Circuit, as the law now stands. That means we have real protection
against firing and termination just because a transportation security
officer is doing his or her job.
I am also pleased this bill provides the same rights to the
Department's Office of Intelligence and Analysis employees as it does
to intelligence employees in other agencies. As we know, whistleblowers
in the Intelligence Committee must be careful when they disclose
certain information. This bill helps govern how these people bring
their claims, while also adequately protecting any sensitive or
classified information that may be involved with such claims.
Mr. Chairman, I want to note that H.R. 1, which passed the House in
January, tries to fix TSA's poor morale problem by giving TSO
whistleblower rights and collective bargaining rights. These collective
bargaining rights are comparable to other law enforcement officers and
others within the Department, such as Border Patrol and others.
I ask my colleagues to support this. This is a new day, a fresh day
for homeland security in America, giving these officers the right to
tell the truth and do their job and protect America.
Mr. Chairman, I rise today in strong support of H.R. 985, the
``Whistleblower Protection Enhancement Act of 2007,'' which extends
whistleblower protections to federal employees and contractors working
in the area of national security and intelligence, including screeners
at the Transportation Security Administration (TSA).
Mr. Chairman, I have long been a strong proponent of whistleblower
protection. As a Member of Congress from Houston, home of NASA's
Johnson Space Center, I have long been involved in developing
procedures and protections to ensure that concerns affecting the public
health and safety are made known and addressed in an atmosphere free of
intimidation, threats, harassment, and reprisal.
For example, during a hearing held a few years ago by the Science
Committee of which I was a member, Admiral Gehman and representatives
of the Columbia Accident Investigation Board explained how fear of
retaliation by management led some engineers to withhold their concerns
about the safety and well-being of NASA missions and crew. Reports
received after the tragic Colombia space shuttle accident indicated the
accident may have been avoided had there been in place a process that
would foster an environment encouraging employees and contractors to
come forward with information that could avert future threats to the
safety of astronauts, mission specialists, and other workers.
My legislation created a NASA Safety Reporting Board that would
rapidly screen such disclosures and either report them directly to the
Administrator, or reject them as non-eligible--perhaps with a
suggestion to seek redress through internal means, e.g., union and OSHA
representatives, and agency ombudsmen. Afterward, the Board would be
tasked with keeping a registry of reporting workers and with dispute
resolution in the event that the worker alleges retaliation by
management. Coupling the reporting and anti-retaliation functions in
one board would limit the scope of the board to truly vital issues, and
make workers feel confident that their concerns will not be lost or
buried in the bureaucracy of standard whistleblower or OSHA claims. The
Safety Reporting Board would be comprised of both NASA managers and
non-managers, with diverse expertise, representing multiple Centers,
and include an advocate for workers.
Because we saw the lack of whistle blower protection for NASA
employers as a safety threat to the nation's commitment to space
exploration and travel, we took action to remove this impediment. The
effort has been successful and we are reaping the benefits to this day.
Mr. Chairman, we need to extend the benefits of whistleblower
protection from NASA to other vital Government agencies and functions.
There is a tremendous need to protect our best sources for identifying
waste fraud and abuse--Federal workers and contractors. H.R. 985 treats
Transportation Security Officers (TSOs), sometimes called
``screeners,'' the same as all other Department employees by giving
them full whistleblower protections, which TSOs currently do not have.
Mr. Chairman, contrary to assertions by opponents of the bill, TSOs
do not have any meaningful whistleblower rights. The truth is TSOs do
not enjoy full whistleblower protections. Specifically, TSOs enjoy
little more than minimal whistleblower protections deriving from a
Memorandum of Understanding (MOU) entered into when TSA was still part
of the Department of Transportation.
Under this MOU, screeners can only bring a claim to the Office of
Special Counsel; they do not have a right of appeal or to seek
independent review by another agency or court.
Mr. Chairman, in 2004, the Merit Systems Protection Board (MSPB)
ruled in Schott v. Department of Homeland Security, that the Homeland
Security Act does not provide TSA screeners the right to bring a claim
before the MSPB, even though such rights were enjoyed by all other
Department employees.
Thus, as you can see Mr. Chairman, TSOs are treated differently than
other Department of Homeland Security personnel--including fellow
employees within TSA.
This bill allows a whistleblower to seek relief in Federal circuit
court, if his or her claim has not been acted upon within 6 months. In
addition, H.R. 985 permits the whistleblower to bring an appeal on
their case to any Federal circuit court of appeals having in personam
jurisdiction, not just the Court of Appeals for the Federal Circuit as
is the case under current law.
[[Page H2526]]
I am also pleased that this bill provides the same rights to the
Department's Office of Intelligence and Analysis employees as it does
to intelligence employees in other agencies. I do not have to tell you,
Mr. Chairman, that whistleblowers in the intelligence community must be
careful when they disclose certain information.
H.R. 985 set forth procedures which
