Intelligence Whistleblowers Need More Protection, Advocate Group Argues

A bone of contention in the nearly 30 months since National Security Agency contractor Edward Snowden leaked details of a domestic surveillance program has been whether the since-defrocked Booz Allen Hamilton employee could have channeled his complaints through in-house supervisors.

The answer is an emphatic no, according to a new report by the PEN American Center, a writers group that advances free speech and literature and whose staff interviewed lawyers, scholars, journalists and government representatives.

Released Tuesday at a Newseum panel discussion featuring Snowden (via video), NSA whistleblower Thomas Drake and New York Timesreporter James Risen, the report, titled “Secret Sources: Whistleblowers, National Security, and Free Expression,” aims to reveal “massive holes in the laws and regulations covering whistleblowing by intelligence workers, particularly when raising valid constitutional or ethical issues about a government action that has been previously authorized by an agency head or Congress as legal.”

PEN cites roadblocks the Obama administration has put in the way of national security workers and journalists seeking to protect sources while making revelations “in the public interest.”

Under the existing legal framework, the report says, intelligence community employees are only considered whistleblowers entitled to protection from retaliation if they disclose “a violation of any federal law, rule, or regulation; or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” through specific internal channels, such as to an inspector general’s office or a congressional intelligence committee. They are not protected for disclosures made to the public, nor are they are protected when they question judgments of legality or propriety concerning public policy matters through internal channels,” PEN said.

The report criticizes the Obama administration for invoking the 1917 Espionage Act in prosecuting leakers, and describes retaliation against whistleblowers at the Justice and Defense departments’ inspector general’s offices.

The advocates recommend strengthening protections across national security agencies and the contractor community; reforming the Espionage Act to allow defendants to raise a public interest defense; and adding more protection against retaliation, including greater access to courts.

To make its case against the status quo, PEN uses statistics to argue that would-be whistleblowers in the Defense and intelligence communities face long odds for getting traction for their complaints.  According to the DoD IG Semiannual Report to Congress, that office during the first half of fiscal 2015 received 591 whistleblower reprisal complaints and closed 671, PEN noted. The Pentagon’s IG substantiated only 9 percent of whistleblower reprisal complaints investigated. The intelligence community watchdog investigated nine reported in-house whistleblower reprisal cases and 52 reprisal cases among contractors, substantiating none.

Many whistleblower advocates have praised Dan Meyer, the government’s executive director for intelligence community whistleblowing and source protection, PEN stated.  Meyer is point man for implementing internally the principles of President Obama’s October 2012 Presidential Policy Directive 19, which added new protections for whistleblowers facing possible retaliation (the applicability of which is debated among whistleblower advocates), and more came in with the 2014 Intelligence Authorization Act.

But Meyer’s office has “only token resources,” which makes protections “hopelessly unrealistic,” in the phrase of Tom Devine, legal director for the Government Accountability Project.

Meyer’s office, in a statement to Government Executive on Wednesday, said the office is suitably staffed, though a deputy director’s slot is currently vacant. The PEN report erroneously created the impression that Meyer had a half-dozen staffers when in fact he works alone with assistance from the intel community IG’s counsel, investigations division and other IG offices across the intel community, including CIA, NSA and Defense Intelligence Agency watchdogs, Meyer’s office said in an email. If the whistleblower goes through their own agency’s process to file a reprisal complaint and isn’t happy with the finding, they can then appeal to the IC IG’s office, at which point Meyer gets involved.  

“Intelligence community contractors do have avenues to make legal, protected disclosures to the inspectors general, the agency head and/or Congress,” Meyer said. “IC contractors are specifically protected from reprisal when it comes to any action affecting eligibility for access to classified information (security clearances), and these protections are outlined in Presidential Policy Directive 19. IC contractors are also protected from reprisal affecting access to classified information if they make a lawful disclosure to Congress through the Intelligence Community Whistleblower Protection Act (ICWPA),” he said. But “neither contractors nor government employees are protected when they disclose to the media. Unauthorized sharing with the media is leaking, and not whistleblowing.”

Government employees in all agencies are protected against adverse personnel actions under Presidential Policy Directive 19 for making authorized disclosures, he added, but “expanding this protection to IC contractors, to include adverse personnel actions by private corporations, would likely require authorities that do not exist in statute.” 

Meyer added that since his whistleblowing program was created in July 2013 by the intelligence community inspector general, “a number of government and contract employees have made protected disclosures and it increases every year. We believe this demonstrates growing confidence and familiarity with IC whistleblowing provisions.”