The House Oversight and Government Reform Committee room teemed on Tuesday with one of Congress' busiest oversight hearings since the Democrats took power in January. Dozens of cameramen huddled in an erratic arc around the witness table. Print media writers crammed into the crowded audience. And the vast majority of guests were forced to watch the proceedings on a television feed in a different room altogether. We'd all come to watch Chairman Henry Waxman's promised whipping of the government's largest private military contractor, Blackwater USA, and its CEO, the wealthy former Navy SEAL Erik Prince. His company has been implicated in, among other things, shooting a security guard of the vice president of Iraq, instigating the bloody battle of Falluja, and, most recently, a September 16 shoot-out in Baghdad that resulted in the deaths of 17 Iraqis. But beyond illuminating Blackwater's conduct in Iraq, Waxman's investigation also raises questions about the rights of federal whistleblowers and about Congress' ability to protect them.
Most of the work Blackwater does in Iraq is contracted by the State Department, and typically, any inquiry into these events would fall to the department's inspector general, Howard Krongard.
But Waxman's committee has been investigating that very office, as well. Recently, seven people working for Krongard alleged that Krongard himself had, in Waxman's words, "interfered with ongoing investigations to protect the State Department and the White House from political embarrassment." Two of those whistleblowers—former Assistant Inspector General for Investigations John DeDona and his erstwhile deputy Ralph McNamara—resigned specifically because of Krongard's meddling.
How did Krongard respond? Allegedly by threatening to terminate anybody else who dared speak with congressional investigators. Two of his employees—special agents Ron Militana and Brian Rubendall—have agreed to speak out anyway.
According to Militana, Krongard's congressional liaison informed the duo that "the majority [Democrats] are not friends. The minority staff has been helpful...You have no protection against reprisal. You have no whistleblower protections. Howard could retaliate and you would have no recourse.
"Howard can fire you. It would affect your ability to get another job," the congressional liaison allegedly threatened.
Waxman, of course, was outraged by the threats and, in a September 28 letter to Krongard, he issued a warning of his own.
"I am appalled by these reports," Waxman wrote. "As an Inspector General, you hold a position of special trust within the federal government. Your office is supposed to be an example of how to protect whistleblowers, not an example of how to persecute them...You should be aware—and you should advise your staff—that Congress has passed civil and criminal prohibitions against threatening and tampering with witnesses, retaliating against whistleblowers, and providing false information to Congress."
But there's a catch. The prohibitions Waxman cites are enshrined in the so-called Whistleblower Protection Enhancement Act of 2007—a comprehensive bill prohibiting retaliation against government whistleblowers that he sponsored, and which the House has indeed passed. But thanks to Senator Tom Coburn (R-Okla.) it is currently on hold in the Senate, in a form that President Bush has threatened to veto anyhow.
In 1989, former President George H.W. Bush signed into law a federal whistleblower protection act of his own, but many of the provisions therein have since been nullified by a series of court orders, most recently the Supreme Court's decision in the case of Garcetti v. Ceballos, which stripped all government employees of their First Amendment rights whenever they're speaking in an official capacity. Waxman's bill aims to reanimate some of those eroded rights.
Stephen Kohn, a District of Columbia attorney and a national expert in whistleblower law, says all is not lost for Militana and Rubendall if they take the right steps—meaning, if they're aggressive enough to do an end-run around the executive branch.
The U.S. Office of Special Counsel should be the place where government employees go for protection when dropping the dime on their superiors' corruption. But the office is now headed by a Bush appointee named Scott Bloch, who has a well-reported record of anti-whistleblower activities. "It's a losing proposition," says Kohn.
That leaves whistleblowers in the hands of the courts. "If they have testified to Congress [to a member or a committee or its staff] they are covered under the oldest whistleblower law on the books," Kohn explains. "Their recourse would be to go into U.S. District Court to get an injunction against any sort of adverse action."
There's no record comparing how responsive the District Court has been in protecting whistleblowers to the more direct route they would have under a better functioning Office of Special Counsel. Kohn says when his firm has turned to the courts, "generally things get ironed out." But that raises the bar on whistleblowing—only those with the fortitude (and financial resources) to do battle will step forward.
"The people who are being harassed for that have to assert their right aggressively," Kohn sums up, "or they'll be stepped on."