In a scenario that would probably have George Orwell nodding his head, the U.S. Army Corps of Engineers has sent Bunny Greenhouse an email “demanding pre-clearance of any [future] testimony Greenhouse may wish to present to Congress.”

Greenhouse, in case you missed it, blew the whistle on non-compete Iraq contracts let by the Bush Administration in 2003, specifically contracts tied to then Vice President Cheney’s former firm, Halliburton. At the time, she was the top civilian procurement officer at the Army Corps of Engineers.

In 2005, the Christian Science Monitor reported that “almost 20 percent of the billions of American taxpayers dollars being spent to rebuild Iraq is being lost to corruption.” If only the Corps (and others) had listened to Greenhouse in 2003. Instead, they demoted her:

The first time I testified before Congress I was stripped of my position in the Army Corp of Engineers’ Senior Executive Service, as the Procurement Executive. However, I am going to testify again. I made this decision because I strongly believe that all employees who report improprieties and waste, fraud, and abuse of taxpayer dollars should be protected from retaliation.

Greenhouse was rewarded “for doing her job — as a civilian entrusted to guard the public treasury — for trying to stave off what now appears to be systematic overbilling, lax fiscal controls and perhaps fraud” by being demoted then and threatened with being muzzled today.

She testified before the House last week on H.R. 1507, the Whistleblower Protection Enhancement Act of 2009, along with the Obama Department of Justice and the American Civil Liberties Union (among others). As ACLU counsel Michael German notes in his testimony, employees are caught in a Catch-22:

Executive Order 12731 requires all federal employees to report “waste, fraud, abuse and corruption to the appropriate authorities.” Unfortunately, employees that follow this ethical obligation are often subject to retaliation by the very managers they are duty-bound to report to. Efforts by Congress to protect responsible whistleblowers, beginning with the Civil Service Reform Act in 1978 and followed by the landmark Whistleblower Protection Act (WPA) in 1989, have been steadily undermined ….. the Department of Justice and the intelligence community successfully lobbied to have Congress exempt employees from the Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA), National Security Agency (NSA) and other intelligence agencies from the WPA, promising instead to provide internal mechanisms to protect whistleblowers from these agencies. As a former FBI whistleblower, I can personally attest to the fact that these alternative regimes do not work.

Whistleblower Protection
In theory, whistleblowers are protected by the 1912 Lloyd-LaFollete Act (5 U.S.C. § 7211), the Civil Service Reform Act of 1978 (PL 95-454) and the 1989 Whistleblower Protection Act (PL 101-12) among other miscellaneous provisions in various laws. However, in 2006, in a 5-4 decision, the U.S. Supreme Court ruled that “the 20 million public employees do not have free-speech protections for what they say as part of their jobs.”

The ruling overturned an appeals court decision that said Los Angeles County prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff’s deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.

Moreover, last week, the Obama Department of Justice “opposed giving national security whistleblowers judicial due process protections.”

Let me remind you that the GAO and various agency Inspectors General regularly write reports (usually significantly after the fact) detailing federal waste and fraud. Why not put this audit arm of the government out of business, so to speak, by truly encouraging employees to report problems in real time, without a fear of retaliation?

Do we want to make it easy for public employees to expose corruption … or difficult?

Do we want to our public employees to be free to speak truth to power … or not?

Does Congress want access to all the resources it needs to exercise its constitutional obligation to check the power of the executive branch … or not?

In the meantime, Greenhouse remains hounded by the U.S. Army Corps of Engineers. And the fate of H.R. 1507, the Whistleblower Protection Enhancement Act of 2009, remains uncertain. Will the Obama DOJ continue to align itself with past (Bush Administration) practices, like it has with other civil rights issues (such as warrantless wiretapping)? It certainly sounds as though that’s the tactic it took in last week’s hearing. I suppose we can hope.

KATHY GILL, Technology Policy Analyst
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