Today, the Government Accountability Project (GAP) praised the Senate Select Committee on Intelligence (SSCI) approval on Tuesday of whistleblower protection in the Intelligence Authorization Act for FY 2014. The Committee restored Senate-passed Whistleblower Protection Enhancement Act (WPEA) provisions for intelligence community workers last fall, which the House Permanent Select Committee on Intelligence (HPSCI) then successfully demanded removal of, threatening it otherwise would block rights for all government workers.
GAP Legal Director Tom Devine commented:
This is the first step toward a safe alternative to leaks for potential whistleblowers in the intelliegence community. If approved, it will be a landmark congressional action to create free speech rights within intelligence agencies, and against security clearance retaliation throughout the civil service. While not a final solution, passage would be the breakthrough paradigm shift to challenge abuses of power and corruption by intelligence agencies without risking threats to national security. Intelligence bureaucrats always have had a blank check to purge whistleblowers at will. Now to make harassment stick, they will have to work hard.
Devine added, “The public owes Sens. Dianne Feinstein (D-Ca) and Saxby Chambliss (R-Ga) appreciation for persistence and leadership in achieving this bipartisan consensus. Senators Susan Collins (R-Maine), Ron Wyden (D-Or) and their staffs deserve special credit for their steady hard work in championing the breakthrough.”
Noting that in 2010 and 2012 HPSCI blocked any whistleblower rights for intelligence community whistleblowers, Devine expressed optimism that this time it will be different:
Hopefully, Chairman Mike Rogers will not sabotage the entire intelligence bill to block protection for those who challenge abuses of power or correction in the only ways he deems proper. HPSCI Chairman Mike Rogers has insisted that intelligence workers should raise concerns through institutional and congressional channels, but currently they proceed at their own risk by following his recommendation.
The SSCI reform includes the following:
- Protection for intelligence community government workers against retaliation banned by the Whistleblower Protection Act (WPA), and identical protection for all government employees against reprisals that remove their security clearances or access to classified information. Disclosures would be protected when made within their agencies, to the Office of Inspector General, or to the select congressional intelligence committees.
- For security clearance actions, reforms included in the WPEA that counter loopholes in protection and exceptions. Congress closed such loopholes last year for all non-intelligence government employees.
- The extension of WPA legal burdens of proof for IC whistleblowers to prevail, and WPA burdens of proof for the employee’s case in security clearance appeals.
- The establishment of mandatory intelligence agency procedures for due process at internal hearings to challenge retaliation, including an independent fact finder, notice of charges, an opportunity for a hearing to present witnesses and evidence, representation by counsel, a decision within 180 days, and guaranteed continued employment during proceedings.
- Appeal rights to an administrative board selected by the Director of National Intelligence, including members who have expertise in merit system rights that govern the civil service system generally.
- Appeal board authority to rule do novo that an agency action is illegal whistleblower retaliation, with authority to order continued employment, payment of attorney fees and costs, and payment of up to $300,000 in compensatory damages.
- Appellate board authority to recommend restoration of security clearances, and mandatory reports to congressional oversight committees by any agency head that declines.
- Preservation of all existing rights, including limited whistleblower protection already available for FBI employees.
The Senate bill would expand and codify actions detailed in Presidential Policy Directive (PPD) 19, issued by President Obama last October after HPSCI blocked congressional approval of intelligence community whistleblower rights. This SSCI legislation would be stronger than the PPD, which does not a.) protect any disclosures to Congress, b.) specify required agency due process rights, or c.) include anyone except Inspectors General on the appellate board.
Despite the Committee’s approval, Devine cautioned, “While a landmark first step, I couldn’t in good conscience reassure any whistleblower that the new rights make it safe to work within the system.”
With this statement, Devine refers to weaknesses in the legislation that must be addressed in future versions of it, including:
- Lack of protection for loss of job duties by IC whistleblowers;
- Lack of hearings at an independent forum not controlled by the institution;
- Agency authority to justify actions with classified information denied to the employee;
- No employee rights to compel production of classified evidence that could make a difference in the case, except to prove that disclosures occurred;
- No employee rights to make congressional disclosures outside the select intelligence committees;
- No protection against security clearance actions of less than a year;
- A loophole permitting summary action by agency heads; and
- An explicit ban on judicial review.
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.