[Congressional Record Volume 160, Number 59 (Thursday, April 10, 2014)]
[Pages S2362-S2371]

                       Whistleblower Protections

  Mr. GRASSLEY. Mr. President, 25 years ago today the Whistleblower 
Protection Act of 1989 was signed into law. To mark that anniversary, I 
come to the floor to discuss some of the history that led to that 
legislation, the lessons learned over the past 25 years, and the work 
that still needs to be done to protect whistleblowers.
  I emphasize that last part because there still needs to be a lot of 
work done to protect whistleblowers. The Whistleblower Protection Act 
was the result of years of effort to protect Federal employees from 
retaliation. Eleven years before it became law in 1989, Congress tried 
to protect whistleblowers as part of the Civil Service Reform Act of 
  I was then in the House of Representatives. There I met a person 
named Ernie Fitzgerald, who had blown the whistle on the Lockheed C-5 
aircraft program going $2.3 billion over budget. Ernie was fired by the 
Air Force for doing that, and as he used to say: He was fired for the 
act of ``committing truth.''
  When the Nixon tapes became public after Watergate, they revealed 
President Nixon personally telling his Chief of Staff to get rid of 
that SOB. That is how a famous whistleblower who pointed out the waste 
of $2.3 billion was treated.
  The Civil Service Commission did not reinstate Ernie until 12 years 
later. In the meantime, he was instrumental in helping get the Civil 
Service Reform Act of 1978 passed. Yet it soon became very clear that 
law did not do enough to protect whistleblowers. In the early 1980s, 
the percentage of employees who did not report government wrongdoing 
due to fear of retaliation nearly doubled.
  Some whistleblowers still had the courage to come forward. In the 
spring of 1983, I became aware of a document in the Defense Department 
known as the Spinney report. The report exposed the unrealistic 
assumptions being used by the Pentagon in its defense budgeting. Those 
unrealistic assumptions were the basis for add-ons later on so defense 
contractors could bid up the cost. It was written by Chuck Spinney, a 
civilian analyst in the Defense Department's Program Evaluation Office.
  I asked to meet with Chuck Spinney but was stonewalled by the 
Pentagon. When I threatened a subpoena, we finally got them to agree to 
a Friday afternoon hearing in March 1983. The Pentagon hoped the 
hearing would get buried in the end-of-the-week news cycle. Instead, on 
Monday morning the newsstands featured a painting of Chuck Spinney on 
the front cover of Time magazine.
  It labeled him as ``a Pentagon Maverick.'' I called him what he ought 
to be called, the ``conscience of the Pentagon.'' The country owes a 
debt of gratitude to people such as Ernie Fitzgerald and Chuck Spinney. 
It takes real guts to put your career on the line, to expose waste and 
fraud, and to put the taxpayers ahead of Washington bureaucrats.
  In the mid-1980s, we dusted off an old Civil War-era measure known as 
the False Claims Act, as a way to encourage whistleblowers to come 
forward and report fraud. We amended that Civil War law in 1986 to 
create the modern False Claims Act, which has resulted in over $40 
billion in taxpayers' money being recovered for the Federal Treasury. 
We made sure when we passed it that it contained very strong 
whistleblower protections. Those provisions helped to build up support 
for whistleblowing.
  People such as Chuck Spinney and Ernie Fitzgerald helped capture the 
public imagination and showed what whistleblowers could accomplish.
  However, that didn't mean the executive branch stopped trying to 
silence whistleblowers. For example, in the spring of 1987 the 
Department of Defense asked Ernie to sign a nondisclosure form. It 
would have prohibited him from giving out classifiable--as opposed to 
classified--classifiable information without prior written 
authorization. That, of course, would have prevented those of us in 
Congress from getting that information so we couldn't do our oversight 
  Further, the term ``classifiable'' didn't only cover currently 
classified information, it also covered any information that could 
later be classified.
  The governmentwide nondisclosure form arguably violated the Lloyd-
LaFollette Act of 1912. That law states that ``the right of employees . 
. . to furnish information to . . . Congress . . . may not be 
interfered with or denied.''
  Just to make sure, I added the so-called anti-gag appropriations 
rider that passed Congress in December 1987. That rider, the anti-gag 
rider, said that no money could be used to enforce any nondisclosure 
agreements that interferes with the right of individuals to provide 
information to Congress. It remained in every appropriations bill until 
2013. I then worked to get that language into statute in 2012 through 
the passage of the Whistleblower Protection Enhancement Act.
  By the time of the first anti-gag rider in 1987, there was widespread 
recognition that all Federal employees ought to be protected if they 
disclosed waste and fraud to the Congress or for a lot of other reasons 
as well.
  Meanwhile, I had also worked with Senator Levin of Michigan to 
coauthor what we called the Whistleblower Protection Act. It was 
introduced in February 1987. There were hearings on our bill in the 
summer of 1987 and the spring of 1988. It proceeded to pass the Senate 
by voice vote in August. Then the House unanimously did that in 
October. After reconciling the differences, we sent the bill to the 
White House. However, President Reagan failed to sign it. That meant we 
had to start all over again in the next Congress.
  We didn't let President Reagan's inaction--because that was a pocket 
veto--stand in the way. Senator Levin and I moved forward again. When 
we reintroduced the bill in January 1989, I came to the floor to make 
the following statement:

       We're back with this legislation in the 101st Congress, and 
     this time, we're going to make it stick.

[[Page S2367]]

       Congress passed this bill last fall after extensive 
     discussions with members of the Reagan administration.
       But in spite of the compromise we worked out, this bill 
     fell victim to President Reagan's pocket veto.
       Whistleblowers are a very important part of government 
     operations. By exposing waste, fraud, and abuse, they work to 
     keep government honest and efficient. And for their loyalty, 
     they are often penalized--they get fired, demoted, and 
     harassed. . . . Under the current system, the vast majority 
     of employees choose not to disclose the wrongdoing they see. 
     They are afraid of reprisals and the result is a gross waste 
     of taxpayers' dollars.
       Government employers should not be allowed to cover up 
     their misdeeds by creating such a hostile environment.

  That is the end of the quote from the statement I made on the 
introduction of that bill in January 1989.
  Once again, the bill passed the Senate and the House without 
opposition. Working with George H.W. Bush, this time we got the 
President to sign it. On April 10, 1989, the Whistleblower Protection 
Act became law.
  We left part of the work undone 25 years ago. The Civil Service 
Reform Act of 1978 had exceptions for the FBI, the CIA, the NSA, and 
other parts of the intelligence community. The Whistleblower Protection 
Act left employees of those agencies unprotected, and so have the laws 
that followed it. I am very pleased that the preconferenced 
intelligence authorization bill released today will remedy that for the 
intelligence community.
  Back in 2012 I championed the addition of intelligence whistleblower 
protections to the Whistleblower Protection Enhancement Act. The 
provisions I authored prohibited various forms of retaliation, 
including changing an employee's access to classified information. 
Working closely with the Senate Select Committee on Intelligence, we 
got that language into the bill that passed the Senate by unanimous 
consent May 8, 2012. However, it was not included in the bill the House 
passed on September 28, 2012.
  Prior to the differences being reconciled on October 10, 2012, 
President Obama issued Presidential Policy Directive 19. It provided 
certain limited protections for whistleblowers with access to 
classified information. Yet that Executive order by President Obama was 
weaker than the provisions I had authored in the Whistleblower 
Protection Enhancement Act. Unfortunately, President Obama's actions 
undercut support for those provisions by suggesting that statutory 
protection was now necessary. The final law that passed in November 
left intelligence whistleblowers at the mercy of the Presidential 
  Now, much of the language I had championed is in the Intelligence 
authorization bill currently under consideration. It is certainly a 
step up from Presidential Policy Directive 19. Making any protections 
statutory is very significant. The bill also has better substantive 
protections than the Presidential directive.
  It does still have some gray areas, I am sorry to say. It leaves some 
of the policy and procedure development to the discretion of the 
executive branch, and that is a mistake we know exists because we had a 
similar thing happen with the FBI because in 1989 the protections of 
the Whistleblower Protection Act didn't apply to the FBI. That turned 
out to be a big mistake.

  Yet that law did require the Attorney General to implement 
regulations for FBI whistleblowers consistent with those in the 
Whistleblower Protection Act. However, it soon became clear that was a 
little like putting the fox in charge of the henhouse. The Justice 
Department and the FBI simply ignored that part of the law for nearly 
10 years. Not until 1997 did the Attorney General finally implement 
regulations for whistleblowers at the FBI.
  The Justice Department was pushed into finally issuing those 
regulations by an FBI employee by the name of Dr. Fred Whitehurst. Dr. 
Whitehurst was considered by the FBI to be its leading forensic 
explosive expert in the 1990s.
  What I am about to show you is that by being a good, patriotic 
American and blowing the whistle when something is wrong, you can ruin 
yourself professionally.
  Shortly after the Whistleblower Protection Act was passed in 1989, 
Dr. Whitehurst disclosed major problems with the FBI crime lab. From 
1990 to 1995 he wrote close to 250 letters to the Justice Department 
inspector general about these problems. In other words, he tried to be 
loyal to the agency he was in and work within that agency to expose 
wrongdoing but didn't get very far.
  In January 1996 he formally requested that the President implement 
regulations as required by the Whistleblower Protection Act. Only after 
Fred was suspended in 1997 did the White House finally issue such a 
memo to the Attorney General. It instructed the Attorney General to 
create a process for FBI whistleblowers as directed by the 
Whistleblower Protection Act. Fred Whitehurst's case dragged on for 
another year until the FBI finally agreed to settle with him in 
February 1998. He got more than a $1 million settlement out of that 
just because he was trying to do the right thing. But he got his badge 
and his gun taken away from him, and he was, in a sense, ridiculed for 
doing what a patriotic American ought to do.
  Fred Whitehurst is not alone in the FBI as far as people having 
problems. Over the years, others--such as Mike German, Bassem Youssef, 
Jane Turner, and Robert Kobus--have blown the whistle from within the 
FBI. Even after the inspector general issued findings in their favor, 
several had to navigate a never-ending Kafkaesque internal appeals 
process. It seemed designed to grind down these patriotic Americans 
into submission through years of inaction.
  Now history has started to repeat itself. As Congress was passing the 
Whistleblower Protection Enhancement Act in 2012, President Obama 
issued Presidential Policy Directive 19. He tasked Attorney General 
Holder with reevaluating the same FBI whistleblower procedures that 
Fred Whitehurst helped get in place in 1997. The Attorney General was 
given 6 months to report back.
  When the Attorney General didn't report back and didn't issue that 
report at the 6-month mark, I asked the Government Accountability 
Office to do its own independent evaluation of the FBI whistleblower 
  Now 18 months after the President's directive, Attorney General 
Holder still hasn't released his report. This is a person appointed by 
the President of the United States, directed by the President of the 
United States to do something in 6 months, presumably loyal to the 
President of the United States, and he isn't doing what the Chief 
Executive of our great country told him to do.
  Potential whistleblowers should not have to wait a decade, as they 
did with the first set of regulations. It appears that the Justice 
Department is simply sitting on its hands once again.
  The example of the FBI should be instructive. Unlike the 
Whistleblower Protection Act, the Intelligence authorization bill is 
much more detailed about the protections Congress intends. It puts a 
time limit on how long the intelligence community has to create their 
procedures, giving them 6 months. However, remember that is exactly the 
same amount of time President Obama gave Attorney General Holder to 
come up with regulations, and it still hasn't happened 18 months later. 
Congress needs to be vigilant about getting both the intelligence 
community and the Attorney General to act.
  In the meantime, the FBI fiercely resists any efforts at 
congressional oversight, especially on whistleblower matters. For 
example, 4 months ago I sent a letter to the FBI requesting its 
training materials on the insider threat program. When we just want 
copies of training materials, would that be difficult for a bureaucracy 
to present to a Member of Congress?
  That program happened to be announced by the Obama administration in 
October of 2011. It was intended to train Federal employees to watch 
out for insider threats among their colleagues. Public news reports 
indicated that this program might not do enough to distinguish between 
true insider threats and legitimate whistleblowers. I relayed these 
concerns in my letter. I also asked for copies of the training 
materials. I said I wanted to examine whether they adequately 
distinguished between insider threats and whistleblowers so it didn't 
become a damper on whistleblowing.
  In response, an FBI legislative affairs official told my staff that a 
briefing might be the best way to answer my questions. It was scheduled 
for last

[[Page S2368]]

week. Staff of both Chairman Leahy and myself attended. The FBI brought 
the head of their insider threat program. Yet the FBI didn't bring the 
insider threat training materials as we had requested. However, the 
head of the insider threat program told the staff of both Senator Leahy 
and myself there was no need to worry about whistleblower 

  They are telling me that at a time when we have decades of history of 
whistleblowers being treated like skunks at a picnic? This gentleman 
said whistleblowers had to register in order to be protected and the 
insider threat program would know to avoid these people.
  I have never heard of whistleblowers ever being required to 
``register,'' in order to be protected. The idea of such a requirement 
should be pretty alarming to all Americans. We are talking about 
patriotic Americans wanting to make sure the government does what the 
law says it should do and spend money the way Congress intended it be 
spent. They have to register to be protected just because they are a 
patriotic American? The reason they can't do that is because sometimes 
confidentiality is the best protection a whistleblower has.
  Unfortunately, neither my staff nor Chairman Leahy's staff was able 
to learn more because after only 10 minutes--only 10 minutes--in the 
office and into the briefing, the FBI got up and abruptly walked out.
  It might be one thing to walk out on Republican staff, but they 
walked out on the staff of a Democratic chairman of one of the most 
powerful committees in the U.S. Senate as well--Chairman Leahy's staff.
  FBI officials simply refused to discuss any whistleblower 
implications in its insider threat program and left the room. These are 
clearly not the actions of an agency that is genuinely open to 
whistleblowers or whistleblower protection.
  Like the FBI, the intelligence community has to confront the same 
issue of distinguishing a true insider threat from legitimate 
whistleblowers. This issue will be impacted by title V of the current 
Intelligence authorization bill, which includes language about 
continuous monitoring of security clearance holders.
  Director of National Intelligence James Clapper seems to have talked 
about such procedures when he appeared before the Senate Armed Services 
Committee on February 11 of this year. In his testimony he said this:

       We are going to proliferate deployment of auditing and 
     monitoring capabilities to enhance our insider threat 
     detection. We're going to need to change our security 
     clearance process to a system of continuous evaluation. . . . 
     What we need is . . . a system of continuous evaluation, 
     where we have a way of--

  Now, get this.

     --monitoring their behavior, both their electronic behaviors 
     on the job as well as off the job, to see if there is a 
     potential clearance issue.

  Director Clapper's testimony gives me major pause, as I hope it does 
my colleagues. It sounds as though this type of monitoring would likely 
capture the activity of whistleblowers communicating with Congress.
  To be clear, I believe the Federal Government is within its right in 
monitoring employee activity on worker computers. That applies all the 
more in the intelligence community. However, as I testified before the 
House Oversight and Government Reform Committee recently, there are 
areas where the executive branch should be very cautious.
  The House oversight committee held a hearing on electronic monitoring 
that the U.S. Food and Drug Administration had done of certain 
whistleblowers in that agency. This monitoring was not limited to work-
related activity. The Food and Drug Administration allows its employees 
to check personal email accounts at work. As a result, the FDA's 
whistleblower monitoring captured personal email account passwords. It 
also captured attorney-client communications and confidential 
communications to Congress and the Office of Special Counsel.
  Some of these communications are legally protected. If an agency 
captures such communications as a result of monitoring, it needs to 
think about how to handle them very differently; otherwise, it would be 
the ideal tool to identify and retaliate against whistleblowers. 
Without precautions, that kind of monitoring could effectively shut 
down legitimate whistleblower communications.
  It wouldn't surprise me, considering the culture of some of these 
agencies, that is exactly what they want to do, because there is a 
great deal of peer pressure to go along to get along within these 
agencies. Whistleblowers, as I said, are kind of like a skunk at a 
  There could be safeguards, however. For example, whistleblower 
communications could be segregated from other communications. Access 
could be limited to only certain personnel rather than all of the upper 
management. In any case, whistleblowing disclosures to Congress or the 
special counsel can't just be routed back to the official accused of 
  As the 1990 Executive order made clear, whistleblowing is a Federal 
employee's duty. It should be considered part of their official 
responsibilities and something they can do on work time. However, that 
doesn't mean they aren't allowed to make their protected disclosures 
confidentially to protect against the usual retaliation. A Federal 
employee has every right to make protected disclosures anonymously, 
whether at work or off the job.
  Every Member of this body should realize that without some safeguards 
there is a chance their communications with whistleblowers may be 
viewed by the executive branch.
  These same considerations apply to the intelligence community. The 
potential problems are heightened if electronic monitoring extends off 
the job, such as Director Clapper mentioned in the quote I gave. We 
have to balance detailing insider threats with letting whistleblowers 
know their legitimate whistleblower communications are protected.
  With continuous monitoring in place, any whistleblower would 
understand their communications with the inspector general or Congress 
would likely be seen by their agency and punishment could follow. They 
might perhaps even be seen by those they believe are responsible for 
waste, fraud, or abuse, and punishment to follow. That leaves the 
whistleblower open to retaliation.
  Even with the protections of this bill, we should all understand it 
is difficult to prevent retaliation because it is so indigenous in the 
culture of most government agencies. It requires a lengthy process for 
an individual to try to prove the retaliation and get any remedy. It is 
far better, where possible, to take precautions that prevent the 
likelihood of retaliation even occurring; otherwise, it will make it 
virtually impossible for there even to be such a thing as an 
intelligence community whistleblower. Fraud and waste would then go 
unreported. No one would dare take the risk.
  To return to the theme I started with, whistleblowers need protection 
from retaliation today just as much as they did 25 years ago when the 
Whistleblower Protection Act was passed on April 10 of that year. I 
have always said whistleblowers are too often treated like a skunk at a 
picnic. You have now heard it for the third time. You can't say it too 
many times. I have seen too many of them retaliated against.
  However, 25 years after the Whistleblower Protection Act, the data on 
whistleblowing is in, and the debate on whether to protect 
whistleblowers is over. There is widespread public recognition that 
whistleblowers perform a very valuable public service.
  Earlier this year PricewaterhouseCoopers found that 31 percent of 
serious fraud globally was detected by whistleblowing systems or other 
tipoffs. According to a 2012 report from another organization, that 
number is even higher when looking just in the United States, with 51 
percent of the fraud tips coming from a company's own employees.
  In 2013, of U.S. workers who had observed misconduct and blown the 
whistle, 40 percent said the existence of whistleblower protection had 
made them more likely to report misconduct.
  Whistleblowers are particularly vital in government, where 
bureaucrats only seem to work overtime when it comes to resisting 
transparency and accountability.
  A year and a half after the Whistleblower Protection Act, President 

[[Page S2369]]

issued Executive Order 1990 that said all Federal employees ``shall 
disclose waste, fraud, abuse and corruption to appropriate 
authorities.'' That should have changed the entire culture of these 
agencies that are antiwhistleblower, but it hasn't. But that is what 
the directive says.
  Federal employees are still under obligations this very day. They are 
fulfilling a civic duty when they blow the whistle.
  I encouraged President Reagan and every President after him that we 
should have a Rose Garden ceremony honoring whistleblowers. If you do 
that, it sends a signal from the highest level of the U.S. Government 
to the lowest level of the U.S. Government that whistleblowing is 
patriotic. Unfortunately, there isn't a single President who has taken 
me up on my suggestion.
  Further, while the Obama administration promised to be the most 
transparent in history, it has, instead, cracked down on whistleblowers 
as never before.
  Last week, the Supreme Court denied a petition to hear an appeal from 
a case named Kaplan v. Conyers. The Obama administration's position in 
that case, if allowed to stand, means untold numbers of Federal 
employees may lose some of the very same appeal rights we tried to 
strengthen in the Whistleblower Protection Act. There could be half or 
more of the Federal employees impacted. Such a situation would undo 130 
years of protection for civil servants dating back to the Pendleton 
Civil Service Reform Act of 1883.
  We all remember that President Obama promised to ensure that 
whistleblowers have full access to the courts and due process. However, 
his administration has pursued the exact opposite goal here. That ought 
to be unacceptable to all of us.
  I think it is important to send a loud and clear signal that waste, 
fraud, and abuse won't be tolerated in government, and that is why I am 
pleased to announce I will officially be forming a whistleblower 
protection caucus at the beginning of the 114th Congress. Until then, I 
will be talking to my colleagues and encouraging them to join me as we 
start putting together an agenda for that caucus in a new Congress.
  As we celebrate the 25th anniversary of this very important bill 
called the Whistleblower Protection Act, we should all recognize 
whistleblowers for the sacrifices they make. Those who fight waste, 
fraud, and abuse in the government should be lauded for patriotism. 
Whistleblower protections are only worth anything if they are enforced.
  Just because we have passed good laws does not mean we can stop 
paying attention to the issue. There must be vigilance and oversight by 
the Congress.
  The best protection for a whistleblower is a culture of understanding 
and respecting the right to blow the whistle. I hope this whistleblower 
caucus will send the message that Congress expects that kind of 
  I call on my colleagues to help me make sure whistleblowers continue 
to receive the kind of protection they need and deserve.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The clerk will call 
the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.