Office of Special Counsel's War On Whistleblowers

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the term "whistleblower" refers to the warning English bobbies used to sound when they saw a crime in progress, an alarm to other officers as well as bystanders. The first U.S. law protecting whistleblowers, the 1912 Lloyd-La Follette Act, came after the Taft administration tried to forbid federal employees from talking directly to Congress. But whistleblowers continued to encounter harassment and retaliation; in 1969, Air Force auditor Ernie Fitzgerald, who had told Congress about massive cost overruns in the C-5 cargo plane program, found himself fired at the behest of President Nixon. (On the Watergate tapes, Nixon can be heard saying, "Get rid of that son of a bitch!") Later, Nixon's plumbers went after Daniel Ellsberg, who leaked the Pentagon Papers to the New York Times, at one point breaking into Ellsberg's psychiatrist's office in an effort to discredit and humiliate him. In response to these and other cases—and to the role that Mark Felt, a.k.a. Deep Throat, had played in exposing Watergate—Congress passed a wave of anti-retaliation measures, including the 1978 Civil Service Reform Act, which established the Office of Special Counsel, and the 1989 Whistleblower Protection Act. But today, many of these safeguards are gone or at serious risk. In 2005, the Washington-based Project on Government Oversight reported that the Whistleblower Protection Act has "suffered from a series of crippling judicial rulings [that] have rendered the Act useless, producing a dismal record of failure for whistleblowers and making the law a black hole." Says Thomas Devine, longtime legal director of the Government Accountability Project and one of the law's key advocates: "My baby turned out to be Frankenstein."

Long gone are the days of successful whistleblowers such as Ernie Fitzgerald—who ended up winning his job back and worked at the Pentagon until his retirement last year. "That's the wrong model for today's environment," a senior Pentagon official told me. "The model for today's environment is Deep Throat. You need to be buried deep in the system, completely anonymous, in order to have effective protection." These days, he added, whistleblowers who go public can expect "15 minutes of fame and 40 years of misery."

In theory, the Office of Special Counsel is supposed to prevent those problems—both by taking whistleblower tips and referring them for investigation, and by helping whistleblowers facing retaliation. In practice, advocates as well as some of the agency's staffers say, the osc has become yet another black hole into which disclosures and complaints disappear.

Bloch, 48, who's tall and heavyset and wears a close-cropped goatee, is a former law professor and attorney from Lawrence, Kansas. A devout Catholic and one-time fellow at the conservative Claremont Institute, he was tapped early in President Bush's first term as the deputy director of the Justice Department's Task Force for Faith-Based and Community Initiatives; then, in June 2003, the president nominated him to run the osc.

It was a culture clash from the start. Having chosen as his deputy a Catholic lawyer who had publicly taken a position against the "homosexual agenda," and hired young lawyers from Ave Maria Law School, the conservative Catholic school founded by Domino's Pizza billionaire Tom Monaghan, Bloch questioned whether the osc should defend federal workers discriminated against for their sexual orientation. When the story got out and dozens of members of Congress signed letters of protest, Bloch blamed whistleblowers: "It's unfortunate that we have a leaker or leakers in our office who went to the press rather than coming to me," he told the Federal Times. Eventually, an embarrassed White House delivered a subtle rebuke to Bloch in the form of a statement reaffirming a long-standing federal prohibition against sexual-orientation discrimination, and noting that the president "expects federal agencies to enforce this policy."

Bloch's high-profile troubles had only begun. In February 2005, his office was accused of improperly dismissing hundreds of whistleblower cases that had been pending when Bloch took over. Among them was the complaint of Adam Finkel, a senior official at the Occupational Safety and Health Administration who, in October 2003, had disclosed to the osc that the government had refused to offer blood testing for federal workplace inspectors who were likely to have been exposed to the toxic substance beryllium while inspecting plants that use the metal. (When osha finally did test the inspectors, in 2004, 3.7 percent in fact came up positive for exposure to beryllium, which can cause fatal lung disease.) "It's bad enough that this all happened at osha, where they have a worker-protection mission," says Finkel, who is now a visiting professor at Princeton University, "but the federal employee who goes to osc looking for some kind of intelligent and grown-up analysis of these health issues, at least in my case, is getting nothing of the kind. I got nothing but skepticism and amateur science.... I was treated like, 'You're a Harvard Ph.D. but you're not a medical doctor, are you?'"

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Illustration by: Steve Brodner

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