In , the House passed a bill that would allow intelligence community whistleblowers to enforce their legal protections using the same mechanisms available to whistleblowers in other sectors of the government. Despite the support of the House and civil society, that bill did not make it through the Senate, and the provision giving intelligence community whistleblowers the right to independent enforcement of their legal protections was excluded from later reforms.
Events surrounding the whistleblower complaint that helped spark the impeachment inquiry into President Trump underscore several additional critical issues with intelligence community whistleblower laws. However, it is clear now that these procedural hoops are to the potential detriment of proper oversight.
Whistleblowers in the military also confront extraordinary challenges. Like intelligence community whistleblowers, they lack an independent means to enforce their legal protections, and must rely on the leadership of their branch of the armed services to enforce the decisions of an inspector general.
If the head of their branch decides against ordering corrective action, the only recourse available to a whistleblower is to petition the secretary of defense. In contrast, in whistleblower reprisal cases for civilians, the burden is placed on the agency to prove there was no retaliation.
Considering the significant power and resource imbalance between an individual whistleblower and the Department of Defense, it is obvious that the law is stacked against whistleblowers.
While there have been legislative initiatives to give service member whistleblowers greater parity with civilian whistleblowers, none have yet been signed into law. Whistleblowers across the federal government are frequently subjected to retaliatory investigations, a personnel practice that is only officially considered whistleblower retaliation at the Department of Veterans Affairs. There is also a host of whistleblowers whose cases are outliers and deserve congressional attention.
Helms was injured in Iraq in , after a roadside bomb went off near the convoy of Humvees for which he was lead gunner. After the Army repeatedly denied Helms the medical treatment that he was entitled to, he blew the whistle.
Finally, recent events have highlighted a troubling lack of clarity about whether whistleblowers and those who voice concerns have a legal right to anonymity.
President Trump has gone so far as to retweet a post that contained the name of a federal employee suspected of being the whistleblower. However, inspectors general are not the only people in government who are in a position to out a whistleblower. When a whistleblower raised concerns with their supervisors before formally filing a complaint with the Office of Special Counsel or an inspector general, then that supervisor is also in a position to out the whistleblower and the prohibition in the Inspector General Act does not apply.
Whistleblower laws, and various other statutes, as currently written might already provide relief for whistleblowers who have had their identities exposed without their consent, but without case law or explicit codified text, whistleblowers are left wondering whether they have an enforceable right to anonymity.
Maintaining anonymity is one of best ways for whistleblowers to protect themselves from professional and personal retaliation. However, Congress can and should address the loopholes and weaknesses in the various whistleblower protection laws to give whistleblowers a fighting chance of prevailing against those who retaliate against them.
It is unprecedented in any whistleblower law. Even if this type of exclusion could be justified which it cannot be , it is open-ended and subject to abuse. These requirements have not stopped money laundering. Other banks have similar requirements. For example,.
Everyone must act to deter, detect, escalate, and report all financial crime. Despite these requirements, money laundering has continued, on a large scale, in numerous banks. No other whistleblower anti-retaliation, qui tam or reward law contains such an exclusion. The exclusion is absurd on its face, highly confusing and subject to abuse. In the SEC, in debating rules under the Dodd-Frank Act, considered the interaction between internal compliance rules designed to help corporations self-police, and the interest of having employees report violations directly to law enforcement.
In fact, strong reward laws actually increase the effectiveness of internal programs, as companies have a strong incentive to support these programs, instead of facing government investigations. Let me say a bit more about company compliance programs. Some commenters urged that internal reporting be made a pre-condition to a whistleblower award.
That was not done, but the final whistleblower rules established a framework to incentivize employees to report internally first. All indications are that internal compliance functions are as strong as ever — if not stronger — and that insiders continue to report possible violations internally first.
Although there is no requirement under our rules that the whistleblower be a current or former employee, several of the individuals who have received awards were, in fact, company insiders.
Many in-house lawyers, compliance professionals, and law firms representing companies have told us that since the implementation of our program, companies have taken fresh looks at their internal compliance functions and made enhancements to further encourage their employees to view internal reporting as an effective means to address potential wrongdoing without fear of reprisal or retaliation.
The volume of tips has been greater and of higher quality than expected when the program was first adopted. We have seen enough to know that whistleblowers increase our efficiency and conserve our scarce resources. Importantly, internal compliance programs at companies also remain vibrant and effective ways to detect and report wrongdoing. The empirical evidence generated under the DFA program demonstrates that a vibrant reward program that explicitly includes all employees has a positive impact on compliance programs.
It is no accident that no other whistleblower law contains such an exclusion. Whistleblowers subject to retaliation for reporting money laundering violations under the new AML LAW face a nightmare scenario. The new law itself contains a strong anti-whistleblower provision.
See 31 U. It is dumfounding that the AML law creates a procedure to file claims with the Department of Treasury, but does not prohibit FDIC insured banks from firing such employees. All other major reward laws simply protect all employees from retaliation for contacting the appropriate law enforcement agencies.
Breaking from this precedent, the AML strips most employees of realistic protection. As explained below, this carve-out will have devastating consequences on AML whistleblowers. The scope of the carve-out is vast: First, all FDIC insured financial institutions and insured credit unions. These laws have had a terrible record, are weak, and have failed to protect bank whistleblowers.
The laws do not contain protections for internal disclosures. Most whistleblowers report violations to supervisors or compliance departments. These three agencies have significant responsibility for policing money laundering.
It makes absolutely no sense to urge employees to file claims within Treasury, when they can be fired for doing so;. Without the ability to pay their attorneys, these laws cannot be used by the overwhelming majority of employees potentially covered;. The definition of adverse employment actions and potential recoverable remedies are far more limited under the older laws.
Former employees and blacklisting are not included in the definition of adverse action;. There are no provisions for anonymously or confidentially filing reports of misconduct under the older laws;.
The AML Act gives the Secretary of Treasury the authority to implement regulations covering the new whistleblower law. However, the law does not require that any rules be implemented, and sets no deadline for publishing rules.
This is in complete contrast to the DFA. Because the AML Act like the DFA creates complex rights and procedures related to obtaining confidentiality, qualifying for a reward, and for filing reward claims, published rules are indispensable for the law to work in practice.
Without proper management, a whistleblower reward law, like the one included in the AML Act, cannot work. Effective whistleblower reward programs, like the program created as part of the DFA, all have a designated office. See 15 U. It is absolutely essential that evidence being provided by whistleblowers to the government is properly handled and provided to the appropriate law enforcement offices. This is the core purpose of whistleblower laws, and without an Office and staff to ensure that this purpose can be achieved, the law will not work.
Additionally, the AML Act contains provisions to protect the confidentiality and anonymity of whistleblowers who provide information to the Secretary of Treasury. Without a centralized office coordinating the claims being filed, and ensuring that the law requiring the confidentiality of whistleblowers is enforced, the law will not work, and at times will be highly counterproductive.
Given the numerous law enforcement agencies that would have an interest in AML allegations filed by a whistleblower, and the extreme risk that AML whistleblowers will take when they report violations especially those who reside in foreign countries , the need for a highly professional whistleblower office, with a well-trained staff, is imperative.
The final problem with the AML Act concerns the double taxation of awards. Thus, without an exemption that protects whistleblowers from double taxation, whistleblowers are taxed on the fees they pay their attorneys. See, e. The AML Act should follow this lead. Whistleblowers should not have to pay a tax on the fees obtained by their attorneys in cases in which the attorney also has to pay such taxes.
Money laundering whistleblowers face the most severe risks for their personal safety than any other class of whistleblowers. Many persons who engage in money laundering are associated with organized crime, terrorism, sanction-busting, bribery, trafficking, and other criminal enterprises that traditionally have had a violent reaction to informants. Given the high-stakes in these cases, Congress must ensure that AML whistleblower laws follow the most strict, best practices that have proven to be essential in incentivizing and rewarding these anti-corruption heroes who often risk so much in the cause of stopping some of the worst crimes in the world.
The current AML law was clearly well-intended. Under the WPA, federal employee whistleblowers were not eligible for protections if they were not the first person to disclose given misconduct, disclosed information to a co-worker or supervisor, disclosed policy decision outcomes, or blew the whistle while carrying out job duties. The WPEA clarified the scope of protected disclosures and closed various administrative loopholes to augment protections established by the WPA. There are also numerous anonymity provisions for federal whistleblowers.
The Inspector General Act states:. Additionally, the Inspector General Act not only mandates the Office of the Inspector General OIG must protect whistleblower confidentiality only disclosing it in the same manner as required by the WPA, but also prohibits retaliation based upon whistleblowers disclosures to the OIG.
Anonymity protection provisions are not only detailed in laws pertaining to whistleblowers. There are also government-wide laws that apply to the cases of whistleblower disclosures and protections, such as the Privacy Act of The Privacy Act prevents any disclosure of the personal information of a government employee without their consent.
This clause would prohibit any government or agency official, even the President, from releasing the identity of an employee, whistleblowers included. If violated, civil and criminal penalties would apply to those exposing the identities of government employees.
Retaining the right to confidentiality and anonymity are critical not only for the safety of whistleblowers, but also for the security of the whistleblowing process.
The Handbook is a step-by-step guide to the essential tools for successfully blowing the whistle, qualifying for financial rewards, and protecting yourself. If you need help or want to contact an attorney, please fill out a confidential intake form. Intelligence community whistleblowers operate under a different set of rules than other federal employees or corporate whistleblowers that leave them uniquely vulnerable.
When the Whistleblower Protection Act was passed in , it only applied to federal employees in unclassified environments by design due to concerns around national security.
Alternatively, if the IG does not find the complaint to be credible, the whistleblower may communicate with the intelligence committees in Congress — but only if they have the permission of the Director of National Intelligence, who is appointed by the President. Therefore, it is important to appropriately handle whistleblowers' information and identity. The report outlines four points in the whistleblower reporting process where congressional staff should be considering ways to encourage communication with employees who call out waste, fraud and abuse while keeping those feds safe.
At the intake point, when feds first reach out to report a problem, congressional staff should have a written process for maintaining security, develop a secure tracking system to keep on top of cases, build a rapport with the whistleblower to establish expectations and processes, and ask questions to fully understand the disclosure, according to the report.
After intake, the office should have established priorities that help make decisions on what actions will be taken after a disclosure has been made and communicate those priorities to the whistleblower. Then offices can refer the disclosure to an agency oversight office or congressional body, and the GAO report said that offices should have a tip sheet with common places to refer a disclosure and a system for documenting exactly where each disclosure was sent.
Staff should also communicate referral options and ask permission from the whistleblower before sharing any personal information. Finally, GAO recommended that offices have documented expectations for follow-up communication and relay those expectations to the whistleblower. The office should also have a plan for evaluating lessons learned from the whistleblower process.
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