An impressive array of NGO leaders, civil rights lawyers and whistleblowers gathered in Washington, D.C. last week to review the current state of the nation and to share their plans for change.
The conference was organized by the Government Accountability Project (GAP), the leading U.S. whistleblower organization, and hosted by the American University Washington College of Law. More than 20 speakers took part, including former FBI employee Coleen Rowley, one of three whistleblowers featured on the cover of Time Magazine in 2002 as its Persons of the Year.
Some of the lessons from this conference are of particular interest to Canadians.
Whistleblower Protection Laws
The U.S. has whistleblower laws which have been developed over the last 30 years and appeared very strong -- at least when drafted. However, these have been repeatedly undermined by the decisions of activist, pro-establishment judges who often ignore or completely re-interpret them. Tiny loopholes have been expanded into massive ones, loopholes have been manufactured where none existed, and some provisions have been turned on their heads to become tools to assault the whistle-blower.
This is largely because certain agencies and court ‘circuits’ have been given a monopoly on whistleblower cases, and because these institutions have been overseen by political appointees who seem intent on undermining their effectiveness. Whistleblowers have almost never succeeded in cases involving these agencies or courts.
A prime example is the Office of Special Counsel, which is supposed to protect U.S. federal employees against job discrimination and retaliation for whistle-blowing. The head of OSC, Scott Bloch, has been accused of numerous misdeeds, including closing hundreds of whistleblower cases without investigating them, and retaliating against his own staff. Bloch is currently under investigation by the FBI.
The key lessons drawn from this experience are that:
- It is essential to create laws that have no loopholes at all: each ambiguity, no matter how small, presents another opportunity for well-funded government or corporate lawyers to stall, attack, and undermine well-founded allegations – and provides another pretext for hostile judges to find against whistleblowers.
- These laws must provide for adjudication in the most transparent, fair, and objective forum available – the public court system. Internal administrative processes and special-purpose courts have proven to be a disaster, consistently finding against whistleblowers, delivering decisions that lawyers find incomprehensible and setting terrible precedents. Furthermore, much of this sabotage has been conducted under a shroud of secrecy.
Based on what has been learned, new US legislation is now being put forward that will solidify several key provisions, including:
- Access to appellate courts
- The right to a jury trial
- Relief while cases are under way (since employers often seek to drag out cases indefinitely)
- Prohibition of ‘gag’ orders (since these allow employers to ‘pay off’ the whistle-blower in return for keeping the wrongdoing secret)
Lessons for Canada
Unfortunately for Canadians, our only national whistle-blower legislation – the Public Servants Disclosure Protection Act (PSDPA) – fails badly on virtually all counts: it has almost none of the features that American experience has shown to be essential. It should be no surprise then that the Canadian system has thus far been completely ineffective. During her first year of operation, with 21 staff and a budget of $6.5 million, our Public Service Integrity Commissioner has found not a single instance of wrongdoing in the Canadian federal public service.
Another central theme of the conference was the status of national security. What emerged was a disturbing picture:
- Many US agencies that have a national security mandate have shown themselves to be incompetent and badly managed in the past (before 9/11).
- These agencies have since been handed large budget increases, much greater powers, less oversight and less accountability for their actions. This is not a recipe for greater competence and efficiency!
- Numerous whistleblowers have highlighted situations in which national security is being put at risk, e.g. by misuse of resources, turf wars, concealing or distorting information.
- Committees charged with oversight of security agencies acknowledge that their work is impossible without the information provided by whistle-blowers.
- National security whistleblowers are much more vulnerable than others because retaliation against them is so easy – agencies simply strip them of their security clearance status, thus rendering them unemployable in their professional field.
The consistent message from conference participants was: excessive secrecy facilitates institutional incompetence, prevents shortcomings from being identified and fixed, and thus hampers national security efforts.
Lessons for Canada
Canadians should note that our national security agencies – and our military – are exempt from the PSDPA: truth-tellers within these organizations have no protection from retaliation. American experience suggests that this is a recipe for declining competence, as wrongdoing goes unreported, unrecognized and uncorrected. Protecting truth-tellers within these agencies is essential for Canadian national security.
This is not a hypothetical issue, as one recent case demonstrates: in December 2006 Transport Canada truth-teller Ian Bron reported serious vulnerabilities in Canadian marine security, yet the department seems intent on punishing him and burying his allegations rather than investigating and correcting the problems. Like many others, his case pre-dates the PSDPA, and so will not even be examined by the Integrity Commissioner.
The Bottom Line
Sadly, everything learned at this conference reinforces the view that Canada's whistleblower laws are merely a smokescreen, designed to give the impression that something good is being done while offering little assistance or protection to honest public servants who so badly need it.
David Hutton is the Executive Director of FAIR (Federal Accountability Initiative for Reform)