MR. AKAKA. Mr. President, as a conferee to the FY 07 National Defense Authorization Act, I urge my fellow conferees to retain the Senate’s strong whistleblower protections for federal employees. The Senate bill includes an amendment I offered with Senator Collins that mirrors our bipartisan measure, S. 494, the Federal Employee Protection of Disclosures Act. S. 494 and the amendment have strong bipartisan support in the Senate. In the House, Representatives Tom Davis and Henry Waxman, the Chairman and Ranking Member of the House Government Reform Committee, and Representative Todd Platts, the sponsor of companion legislation to S. 494, have asked Representative Duncan Hunter, Chairman of the House Armed Services Committee, to include strong whistleblower protections in the final defense authorization bill.

The Senate action was a significant step forward for federal whistleblowers and the American taxpayer. Congress must assert its original intent of the Whistleblower Protection Act (WPA), which protects federal employees who disclose any waste, fraud, and abuse. Congress encourages such disclosures, which save lives and taxpayer dollars, and has repeatedly said that the courts should not erect barriers to disclosures which limit the flow of information from federal employees who may have knowledge of government wrongdoing.

We have all heard of the brave men and women who have come forward at great personal risk to report cases of waste and threats to public safety. Examples include:

• Mr. Richard Foster, Medicare's chief actuary, who disclosed to Congress that the actual cost of the Medicare reform bill was $156 billion more than what the Bush Administration told us. He was prohibited by his supervisors from alerting Congress to this huge discrepancy prior to the bill’s enactment and was threatened with firing if he did so;
• U.S. Border Patrol Agents Mark Hall and Bob Lindemann, who disclosed security lapses along our northern border, including a lack of staff, equipment, and detention facilities. As a result, their supervisors proposed 90-day suspensions and demotions for one year; and  
• Mr. Donald Van Winkle, an air-monitoring technician at the Bluegrass Army Depot in Kentucky, who revealed serious operational failures with monitors used to detect leaks of chemical warfare agents. As a result of this disclosure, Mr. Van Winkle lost his security clearance, thus denying him the ability to continue his job. Unfortunately, current law does not provide any independent review for this type of retaliation.

This spring, the Supreme Court ruled that the First Amendment does not protect public sector employees, including federal workers, from retaliation when disclosing government wrongdoing as a part of their official duties. Instead, the Court held that protection is left to state and federal whistleblower laws. Unfortunately, federal whistleblower protections have been watered-down by repeated decisions by the Federal Circuit Court of Appeals which ignore clear congressional intent that disclosures are protected without restriction to time, place, form, motive, or context, including disclosures made during the ordinary course of an employee’s job.

As a result of various court decisions, honest employees have been denied protection from retaliatory practices. In fact, only one federal whistleblower has won on the merits of their claim before the Federal Circuit in the past twelve years. This egregious lack of employee protection has a serious chilling effect on good faith whistleblowing. Although President Bush issued a memo in 2001 requiring federal employees to disclose waste, fraud, and abuse, the decisions of the Supreme Court and the Federal Circuit Court of Appeals have eroded protections for disclosures and placed federal workers in a no-win situation. Congress must take action now to restore the protections granted by the WPA.

My amendment will:

• clarify congressional intent that federal employees are protected for any disclosure of waste, fraud, or abuse – including those made as part of an employee's job duties;

• provide an independent determination as to whether the loss or denial of a security clearance is retaliation against a whistleblower; and

• suspend the Federal Circuit’s sole jurisdiction over federal employee whistleblower cases for five years.

Congress has the responsibility to guarantee strong and meaningful protections for federal whistleblowers. Federal employees must know they will not face retaliation when disclosing information that protects our national security, safeguards the health of our children, or saves taxpayer dollars.

Mr. President, if Congress is serious about eliminating waste, fraud, and abuse, and ensuring that the government for the people and by the people actually is working in the best interests of the people, then we must protect those who wish to disclose illegal or unethical activities. Whistleblowers should not be restrained because they fear retaliation for doing what’s right.

Again, I thank my Senate colleagues for supporting this important measure, and I urge our House counterparts to join with us in strengthening whistleblower protections.