New protections coming for disgruntled intelligence workers

Introduction

The Obama administration is moving toward final implementation of new job protections for disgruntled intelligence employees who keep their complaints about wrongdoing within government channels.

Some advocates for whistleblowers have hailed the move, which comes as Edward Snowden — who has claimed to be a U.S. national security whistleblower — accelerates his search for foreign asylum from a Moscow airport waiting room.

By July 8, dozens of federal agencies are required to tell the White House in detail how they plan to implement an order the president signed last October that prohibits retaliation against those who flag “waste, fraud and abuse” in intelligence programs to approved officials.

Obama signed the directive after Congress twice dropped intelligence workers from legislation meant to strengthen whistleblowing protections throughout the government. The lawmakers were responding in part to longstanding intelligence agency claims that those with access to highly sensitive national secrets must be treated differently than other U.S. employees and that they already had adequate redress for any grievances.

An administration spokesman, speaking on condition he not be identified, said agencies are “on track” to meet Obama’s implementation deadline. Moreover, even though Obama’s order generally applies only to government employees — not intelligence contractors like Snowden — the administration is looking closely at how to protect contractors who claim their access to intelligence information was withdrawn as punishment for telling authorities about wrongdoing.

“The Executive Branch is evaluating the scope” of protections for such contract workers as it implements Obama’s order, according to an unsigned, undated statement supplied to the Center for Public Integrity by the Office of the Director of National Intelligence.

The options for redressing improper retaliation, which Obama said will now become available to any U.S. intelligence agency officials and employees, include reinstatement, reassignment, attorney’s fees, back pay, and compensatory damages.

More than 50 government agencies and departments will be subject to the new rules, including the CIA, the Office of the Director of National Intelligence, and the departments of Defense, State, Energy, and Homeland Security. The precise number of workers covered by the president’s directive is classified, but a spokesman for the Office of the Director of National Intelligence said the number of intelligence community workers is around 100,000.

The Federation of American Scientists says the number of those with access to classified information — including contract employees and workers throughout the government — is actually 4.8 million.

Snowden, a former Booz Allen Hamilton and CIA contract employee who gained access to extraordinarily sensitive National Security Agency data, claimed in a Guardian newspaper interview last month that his disclosures were provoked in part by the failure of colleagues to take his complaints about U.S. surveillance actions seriously. “The more you talk about the more you’re ignored,” Snowden said. “The more you’re told it’s not a problem until eventually you realize that these things need to be determined by the public and not by somebody who was simply hired by the government.”

His stature as an alleged whistleblower is controversial, however. Some U.S. lawmakers and officials have cited his disclosures — including his flight to Russia — as evidence of an intent to harm the country or help its historic antagonists.

But Sen. Chuck Grassley, R-Iowa, a longtime supporter of enhanced whistleblower protections, referred to the Snowden case when he told a June 21 Judiciary Committee hearing that “I continue to believe that a major problem causing the leaking of classified information is the lack of whistleblower protections for members of the Intelligence Community.”

“The final version of the Whistleblower Protection Enhancement Act that was signed into law last year failed to include protections for the Intelligence Community that I authored,” Grassley said, adding that he blamed House lawmakers for blocking them. “It would have provided a protected method for employees to report concerns through a protected channel within the Intelligence Community.”

ODNI’s public affairs office said agencies must detail their new policies and procedures in letters to the White House now, and by October 10, notify their employees about the procedures , including a description of which disclosures are protected.

Steven Aftergood, director of the Federation of American Scientists’ Project on Secrecy, called the president’s action “unprecedented,” adding it would “provide new channels for people to challenge abuse or to allege mistreatment.” There may turn out to be gaps in the new rules, he said, but they reflect recognition at the highest levels of government that whistleblowers need to be protected rather than harassed.

Angela Canterbury, director of public policy for the Project on Government Oversight, expressed caution about the new rules, however. Even for U.S. employees, the review process for complaints of retaliation against whistleblowing is “all internal,” she said. “There’s no independent process rights or truly independent appeal rights.” Instead, the new rules call for cases to be reviewed and adjudicated by inspector generals at each agency, or on appeal, by a panel of three such inspector generals.

A spokesman for the CIA confirmed that the agency has drafted a new regulation for implementing the directive, and is on track to meet the July 8 deadline.

“Right now, intelligence community employees proceed at their own risk if they go through institutional channels,” said Tom Devine, legal director for the Government Accountability Project. “They have no free speech rights.”

Snowden, Devine said, “could have sparked an investigation and Congressional oversight of the propriety of, the legality of blanket surveillance. He could have been making charges to law enforcement officials rather than being a fugitive from them. We can’t read his mind as to whether he would have taken that option. But it doesn’t exist currently.”

Devine and others have said that Rep. Mike Rogers, R-MI., a former FBI special agent who chairs the House Select Intelligence Committee, played a key role in removing protections for intelligence workers from the Whistleblower Protection Enhancement Act in 2012.

Rogers did not respond to phone messages and emails requesting comment. But this week, Rogers told the TV program “Meet the Press” that Snowden “went outside all of the whistleblower avenues that were available to anyone in this government including people who have classified information. We get two or three visits from whistle blowers every single week in the committee, and we investigate every one thoroughly. He didn’t choose that route.”

“That’s why this is so serious and why we need to be so aggressive about making sure that people understand the difference between someone who betrays their country” and a genuine whistleblower, Rogers said.

Gabriel Schoenfeld, a senior fellow at the Hudson Institute and author of “Necessary Secrets: National Security, the Media and the Rule of Law,” told the Center for Public Integrity that he believes protecting national security whistle blowers is “a good idea and a necessary step to protect the integrity of intelligence organizations that operate in secret and where congressional oversight is somewhat limited.”

Good protections could help make it harder for leakers whose motives may be suspect win sympathy from the public, he said, “since they did not go through channels before they compromised government secrets.”