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The Office of Special Counsel’s Oversight Role in National Security: A Home for Whistleblowers

To function efficiently and effectively, the government must promote whistleblowing by its employees. This is especially true in the national and homeland security contexts, where bureaucratic decisions can threaten the safety of U.S. forces, citizens, and basic liberties.

The vital role of government whistleblowers is exemplified by the case of a Marine Corps civilian scientist named Franz Gayl. In 2007, improvised explosive devises were killing and wounding U.S. forces in Iraq at an alarming rate. That year, the bloodiest of the conflict, roadside bombs killed over 600 U.S. and coalition forces. By 2008, total military deaths dropped to 322, mainly due to the sharp drop in casualties due to IEDs. They continued to abate in the years to come.

Many factors contributed to the drop in coalition fatalities, but Mr. Gayl deserves significant credit. He pressured the Pentagon bureaucracy to speed up its purchase of thousands of Mine Resistant Ambush Protected vehicles (MRAPs). Mr. Gayl knew these vehicles were best-equipped to absorb IED blasts. Years later, Ashton Carter, then-deputy defense secretary, told USA Today, “You are between nine and 14 times less likely to be killed if you were in an MRAP than if you were in a humvee.” At the time, however, the Pentagon had slow-rolled commanders’ requests for MRAPs, opting to continue to equip troops in poorly-armored Humvees.

Mr. Gayl refused to remain silent as U.S. forces were unnecessarily killed and maimed. He exposed a two-year delay in the Pentagon’s response to a Marine Corps general’s urgent request for MRAPs. Ultimately, under pressure from Congress and the media, then-Defense Secretary Robert Gates made the purchase of MRAPs the top acquisition priority for the Defense Department in 2007. 

American lives were saved. But, like so many other employees who buck the bureaucracy, Mr. Gayl’s courageous efforts nearly destroyed his career.

The Office of Special Counsel’s Mission

The U.S. Office of Special Counsel (OSC) helped defend Mr. Gayl after he blew the whistle. His case highlights OSC’s primary mission: to protect whistleblowers and to promote disclosures that result in a better and more transparent government. OSC is an independent federal agency, a creation of the Civil Service Reform Act of 1978. OSC was one of the post-Watergate and Vietnam-era reforms that Congress passed to strengthen oversight and curb abuses within the executive branch. The Special Counsel, currently Carolyn N. Lerner, is appointed to a 5-year term, independent of the presidential election cycle, and can only be removed for cause.

OSC’s non-partisan mission complements the work of Inspectors General (IGs). But, unlike the IGs, OSC is specifically empowered to take action to assist whistleblowers. For example, OSC can file requests with the Merit Systems Protection Board (MSPB), an administrative court for employment issues in the executive branch, to stay actions temporarily while OSC investigates the whistleblower’s retaliation complaint. OSC also works to resolve complaints through negotiations with agencies, seeks discipline against retaliators in egregious cases, and litigates on behalf of whistleblowers before the MSPB.

Federal civil servants are reluctant to speak out without strong protections against retaliation. A 2010 study found that 62 percent of federal civil servants say fear of reprisal would factor into their decision to blow the whistle. In this uncertain environment, a revitalized OSC has played a more prominent role as a guardian of whistleblowers over the last five years. Though still relatively unknown outside of the federal workforce, OSC’s annual workload has roughly doubled since 2008, indicating that more federal employees are aware of OSC, more willing to speak out, and more confident that OSC will assist them if they do.

OSC in Action

OSC builds credibility within the federal workforce by taking on high-profile cases like Mr. Gayl’s, where the whistleblower’s disclosures have improved the country’s security. By 2011, after years of hostile actions following his MRAP disclosures, Mr. Gayl needed OSC’s assistance. Stung by Mr. Gayl’s disclosures, the Pentagon indefinitely suspended him without pay and threatened to revoke his security clearance, a requirement for continued employment in the Defense Department.

Mr. Gayl filed a complaint with OSC. After an initial reprisal investigation, OSC filed a stay request with the MSPB. For decades, the Supreme Court’s decision in Navy v. Egan (484 U.S. 518 (1988)) has prohibited OSC and the MSPB from taking action to address retaliatory security clearance actions. So, OSC worked around this precedent; rather than attempting to tackle the security clearance issues head on, OSC’s stay request returned Mr. Gayl to full pay status so he could continue to fight back against the alleged retaliation. Through OSC’s mediation program, Mr. Gayl and the Marine Corps slowly found common ground, and reached a settlement in September 2014. Importantly, as part of the settlement, the Marine Corps created a team to inform Marines about their whistleblower rights, and appointed Mr. Gayl to that team.

Cases and results like these send a loud message to federal employees that whistleblowing should be rewarded, not punished.

In addition to individual cases, OSC works to expand whistleblower protections and curb abuses in government through its policy directives, litigation, and amicus briefs. For example:

  • OSC published guidance instructing agencies not to violate the law by targeting whistleblowers through electronic surveillance after the Food and Drug Administration monitored the public and private email accounts of employees who blew the whistle, including their communications with attorneys, OSC, and the Inspector General.
  • When the Bureau of Alcohol, Tobacco, Firearms and Explosives attempted to fire an employee for testifying under subpoena in federal court, OSC investigated, brought a complaint on his behalf, and successfully extended the scope of First Amendment protections for federal workers.
  • To put more teeth in the Whistleblower Protection Enhancement Act (WPEA) of 2012, OSC released government-wide guidance restricting the use of non-disclosure agreements and other forms of gag orders in federal employment.

And in the first Supreme Court federal whistleblower case since 1984 (Department of Homeland Security v. MacLean), OSC filed an amicus brief that included arguments at odds with the Solicitor General’s position. In a 7-2 decision issued in January 2015, the Court ruled in favor of Mr. MacLean and adopted OSC’s view that agencies cannot nullify whistleblower protections for employees by issuing regulations that restrict disclosure of certain types of information. As OSC argued in its brief, “Whistleblower protection laws exist because government officials do not always act in the nation’s best interests.” Accordingly, a “central goal” of the law is to “encourage disclosures.”

An independent, vibrant OSC is needed to promote disclosure, protect federal employees who blow the whistle, and help to build a stronger, more transparent, and accountable government.

 

Nick Schwellenbach is OSC’s Director of Communications. Adam Miles is Deputy Special Counsel for Congressional Affairs and Policy. This essay is written in their personal capacities and does not reflect the views of OSC or of the federal government.

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About the Authors

is the deputy special counsel for policy and congressional affairs at the Office of Special Counsel.

is Director of Communications in the Office of Special Counsel.