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Since NSA contractor Edward Snowden disclosed the U.S. government’s mass surveillance programs in June 2013, there has been repeated misinformation about the whistleblower protections Intelligence Community (IC) contractors enjoy. The latest occurred during the opening Democratic national debate, when presidential candidate Hillary Clinton remarked that Snowden “could have gotten all of the protections of being a whistleblower.” Similarly, the Obama administration has challenged Snowden to “come home to the United States, and be judged by a jury of his peers.” In reality, Snowden did not have viable protections to work within the system. That was not always the case for IC contractors, however.
From 2008 through 2012 select IC contractors did benefit from robust whistleblower protections. A five-year track record demonstrated that the law worked as intended and did not produce any adverse impacts on national security. However, the rights were rolled back in December 2012 at the insistence of the House Intelligence Committee.
In a recent letter to President Obama, the Government Accountability Project and nearly 50 organizations — ranging from Human Rights Watch and Public Citizen, to Gun Owners of America and Restore the Fourth — explained the current predicament:
“Government contractors who blow the whistle on waste, fraud, abuse of authority, gross mismanagement or a violation of law should be honored and protected, not disgraced and left vulnerable. However, IC contractors were stripped of whistleblower protections in 2012 and now do not have independent due process rights … to defend themselves in the face of retaliation …”
Recent history has shown that even when IC whistleblowers work within the system to expose wrongdoing, they are more likely to face criminal retaliation than Clinton’s promised “positive response.” In 2002 Edward Loomis, a career NSA employee and then contractor, used authorized channels to blow the whistle on an ineffective surveillance program that wasted taxpayer dollars and violated the constitutional right to privacy. The government’s response? Loomis and his colleagues were subjected to FBI raids, his security clearance was immediately suspended, and he was blacklisted from his life’s work. Snowden has repeatedly stated that he closely followed the treatment of his predecessors.
The administration’s newly released National Action Plan includes a commitment to “reinforce the principle that the Intelligence Community workforce can and should raise concerns through appropriate mechanisms”, through the use of awards and trainings. Certainly if Loomis had received an award for his actions, it would have encouraged rather than chilled future internal whistleblowing. Rather, his actions were criminalized and he had no legal redress. Cultural change can begin through symbolic gestures, but they must be backed by the force of law in order to credibly take root.
Sen. Claire McCaskill (D-Mo.) has introduced S. 794, legislation to restore whistleblower protections to IC contractors. The bill provides full due-process rights, including court access, for employees to challenge retaliation when they make protected disclosures to the designated Inspector General or the Congressional Intelligence Committees.
During a recent Senate hearing, Director of National Intelligence James Clapper supported S. 794 and acknowledged, “Whistleblowers absolutely must be protected so they are induced or motivated to go within the channels, knowing that they’ll be protected.” Despite widespread consensus in principle, this Congress has yet to move the needle on IC contractor rights. The consequences of congressional inaction were captured at the 2015 annual Computers, Freedom and Privacy conference.
During the opening plenary, former FBI whistleblower Mike German interviewed Snowden on past and present civil liberties violations. Snowden described the existing Catch-22 for those who work within the system to effect change, “You put your career on the line to report any wrongdoing and you’re required to report it to those responsible for the wrongdoing in the first place. In most cases, [the system is] asking criminals to indict themselves. If we can’t change that and show demonstrably that whistleblower channels work then the people will create their own.”
If Clapper and Snowden can agree on the need for reliable whistleblower protections within the Intelligence Community, then Congress can rally behind S. 794.
Devine is legislative director and investigator for the Government Accountability Project (GAP). Laroia is acting director of GAP’s national security and human rights program. GAP is a partner in the OpenTheGovernment.org coalition.