Mr. President. I rise to address the amendment offered by Senators Gramm and Miller as it relates to whistleblower protections. Contrary to press accounts, the Gramm-Miller amendment, as well as the House-passed bill and the President's initial bill, do nothing to protect whistleblowers. As Congress debates the creation of the new Department of Homeland Security, we must remember the role that whistleblowers play in protecting this great nation. We commend the courage of FBI Special Agent Coleen Rowley, who blew the whistle on the serious institutional problems at the FBI which impacted the agency's ability to effectively investigate and prevent terrorism. We commended federal Border Patrol Agents Mark Hall and Bob Lindemann, who risked their careers by alerting Congress to Border Patrol and INS policies that compromised the security of our borders.
Their actions alerted us to flaws in the current system and allow us to fix such problems in order to have a more secure nation. Because whistleblowers play such an important role in protecting our country, we must do our part to protect them from retaliation for disclosing government waste, fraud, and abuse. The Lieberman substitute is the only amendment before us that provides real whistleblower protection. During the Committee on Governmental Affairs hearings on the creation of the proposed Homeland Security Department, I asked Governor Tom Ridge about whistleblower protections for federal employees in the Department of Homeland Security. He said that all employees in the new department would have whistleblower protections because the bill would require the new personnel system to be grounded in the public employment principles of merit and fitness.
However, requiring that a human resources system be 'grounded in the public employment principles' does not equate to whistleblower protection. Congress has worked hard, and continues to work, to provide real whistleblower protection to federal employees. Claiming that whistleblower protection will be provided based on such 'principles' does nothing to assure federal employees of their rights and protections or assure Congress that their bipartisan efforts on behalf of whistleblowers would not be frustrated.
Adding to my concern over the lack of protections afforded to employees in the new department, H.R. 5005 and the amendment offered by Senators Gramm and Miller fail to provide the same level of whistleblower protection that federal employees have in most federal agencies. Although the House bill and the Gramm-Miller amendment allegedly maintain whistleblower protections and other merit system principles for employees of the new department, both allow the Secretary to waive due process procedures and the remedies an employee needs to assert those rights.
The Gramm-Miller amendment bars the Secretary from waiving the applicability of several chapters of Title 5 covering a variety of civil service issues. The list of non-waivable chapters conspicuously fails to include protections against unwarranted disciplinary actions and performance appraisals, access to third party investigations by the Office of Special Counsel (OSC), or independent hearings at the Merit Systems Protection Board (MSPB). Those agencies provide vital third party review and transparent enforcement for whistleblower and other merit system rights.
When federal employees allege that they have been subject to a prohibited personnel practice, including violations of the Whistleblower Protection Act, OSC has authority to receive and investigate such allegations. If the Special Counsel finds reasonable grounds to believe that a violation has occurred and corrective action is required, she must report the determination to the MSPB, the affected agency, and the Office of Personnel Management (OPM). If the agency fails to act to correct the prohibited personnel practice, the Special Counsel may petition the MSPB for corrective action. Since these procedures are not specifically included in H.R. 5005, it is doubtful that the protections afforded to other employees are available to Homeland Security employees.
In 1995, Congress gave wide latitude to the Federal Aviation Administration (FAA) to create its own personnel system. Although this system was to afford whistleblower protections, the Justice Department found that Congress incorporated only selected provisions of Title 5 into the FAA personnel management system, thus leaving OSC without authority to investigate or otherwise pursue cases of whistleblower retaliation alleged by FAA employees.
The reasoning of the Justice Department is supported by Supreme Court precedent, which states that "[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied." Moreover, Congress has repeatedly demonstrated that if its intention is to exempt certain entities generally from Title 5, but to apply the substantive whistleblower protections and all the ancillary enforcement procedures, it knows how to do so unambiguously. For example, when Congress applied only selected provisions of Title 5 to the Panama Canal Commission, it provided for application of the whistleblower protection provisions as follows:
"Section 2302(b)(8) (relating to whistleblower protection) and all provisions of Title 5 relating to the administration or enforcement or any other aspect thereof, as identified in regulations prescribed by the Commission in consultation with the Office of Personnel Management."
It is fair to conclude that whistleblowers in the new department do not have the same protections as other employees in the federal government due to the absence of any similar reference to the whistleblower protection enforcement provisions of Title 5 in the House bill or in the Gramm-Miller amendment.
The Lieberman substitute, however, maintains all of the Title 5 protections for whistleblowers to ensure that they have the needed protection to come forward and alert us to serious problems in the federal government that can hamper our efforts to secure our homeland. It also ensures the continuation of union representation which allows third party arbitration for whistleblowers. The Lieberman substitute also contains two provisions, sponsored by myself and Senator Levin, which enhance the protections afforded to federal employees.
The Akaka-Levin provisions grandfather the whistleblower rights of employees transferred into the new department and provide full whistleblower protections for TSA baggage screeners. Whistleblower protections for TSA employees had unanimous bipartisan support from the Governmental Affairs Committee and the provision mirrors the language of S. 2686 which was introduced by Senator Grassley. Despite such widespread support, the Gramm-Miller 'compromise' amendment does not include this bipartisan protection for whistleblowers.
Under the terms of the Aviation and Transportation Security Act that we passed last year, the Under Secretary of Transportation for Security has the authority to employ, terminate, and fix the conditions of employment for the Federal screening workforce while the rest of the employees of the Transportation Security Agency (TSA) are governed by the personnel system established by the Federal Aviation Administration (FAA).
While the FAA personnel system now provides full whistleblower protection to employees, TSA security screeners are denied such protection. In May, TSA and OSC reached an agreement to provide limited whistleblower protection to TSA baggage screeners. Under this non-statutory agreement, security screeners were not afforded appeal rights. However, the right to appeal to an independent third party is a necessary part of providing real whistleblower protection. Such protection is necessary to ensure that screeners feel secure in coming forward with information of government waste, fraud, and actions that are dangerous to public health and safety.
Recognizing the need for full whistleblower rights, Congress resolved to provide OSC enforcement authority and full whistleblower rights to FAA employees in 2000.
I urge my colleagues to once again protect our federal whisleblowers by providing full and explicit whistleblower protection to employees in the Department of Homeland Security. I urge my colleagues to oppose the Gramm-Miller amendment and support the Lieberman substitute.
