President Barack Obama has issued a directive that appears to finally provide whistleblower protections for intelligence agency employees in government. The directive declares employees able to access classified information “can effectively report waste, fraud and abuse while protecting classified national security information.” It also includes a “prohibition” against retaliation against employees, who report “waste, fraud and abuse.”
The Project on Government Oversight (POGO) listed off some of the new protections: protects disclosures, including those made to supervisors in the chain of command, the Inspector General of an agency or a designated employee; protects employees who participate in investigations related to an investigation or in relation to possible violations of the directive; requires intelligence community agencies to create a review process for retaliation claims; mandates agencies possessing classified information establish remedies for retaliation, such as reinstatement of attorney’s fees, back pay and related benefits like travel expenses or compensatory damages.
POGO’s Director of Public Policy Angela Canterbury called the directive “unprecedented” and said it aimed to address the “endemic culture of secrecy in the intelligence community (IC) and the dearth of accountability it fosters.” Canterbury added, “While this directive is not a panacea, it begins to fill a large void in whistleblower protections and lays the framework for more government accountability where it is sorely needed. Because the President directs agencies to create procedures for internal review of claims, we will be very interested in the rulemaking and strength of the due process rights in practice.”
However, this is the key issue with the directive. It is toothless and does not contain any enforcement mechanism nor does it afford whistleblowers any due process rights.
The National Whistleblowers Center (NWC) released a statement on the directive:
The Directive appears on its face to help national security whistleblowers by requiring these agencies to establish a process for whistleblowers to seek review of prohibited personnel actions. However, the last paragraph (Section G) insulates the government from any liability to whistleblowers and bars whistleblowers from relying on the Directive to enforce any legal rights. This closing paragraph explicitly limits the legal enforceability of any the rights or procedures established under the Directive…
The section limiting “legal enforceability” is as follows:
This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
In other words, the more than two thousand words in this presidential directive are just that: words. It is an acknowledgment that there is a problem. It puts a general belief the president has that national security whistleblowers should have some semblance of rights in writing. But, it does not offer a way for whistleblowers to challenge the decision of an agency to fire them in court.
As Stephen M. Kohn, NWC executive director, concluded, “The Directive fails to provide whistleblowers with any new enforceable legal rights. In fact, the Directive specifically states that it does not ‘create any right or benefit’ for whistleblowers. This section renders the Directive toothless. We are concerned that national security employees may think that this Directive gives them some much-needed protections when it does not.”
The Government Accountability Project (GAP), though it praised the directive, raised similar issues with the directive. GAP legal director said, “Until agencies adopt implementing regulations, no one whose new rights are violated will have any due process to enforce them. Further, there are only false due process teeth on the horizon. Regulations to enforce whistleblower rights will be written by the same agencies that routinely are the defendants in whistleblower retaliation lawsuits.”
Devine added the directive should not be a “substitute for Congress to legislate permanent rights for national security whistleblowers, with third party enforcement the same as for other employees. That is the case in the Privacy Act and Equal Employment Opportunity Act, two other remedial employee laws that provide intelligence employees access to the same boards and courts as all other federal workers.” Or, as Kohn stated, this should not “justify Congress’s failure to enact legal protections for national security whistleblowers.”
The directive comes less than thirty days before Election Day. The Obama 2012 campaign and its supporters like to talk about GOP presidential candidate Mitt Romney and how he keeps pushing the reset button so he can get around scrutiny. Here Obama is pushing the reset button. He is asking critics of his war on whistleblowers to silence themselves at least until after the election.
The Obama administration has investigated and prosecuted a record number of whistleblowers (something Obama’s re-election has proudly emphasized):
—Former NSA employee Thomas Drake, who shared details on the agency’s warrantless wiretapping program
—Former CIA officer Jeffrey Sterling, who was charged with providing information with New York Times reporter James Risen on an operation that might have led to Iran getting information on how to build a nuclear bomb (the Obama Justice Department is trying to force Risen to testify)
—Former FBI linguist Shamai Leibowitz, who received twenty months in prison for releasing documents to a “blogger” on a possible Israeli strike against Iran
—Former State Department arms expert Stephen Kim, who under assignment shared information with Fox News reporter James Rosen on North Korea’s possible response to criticism of the country’s nuclear program
—Pfc. Bradley Manning, who allegedly leaked classified information to WikiLeaks that included the “Collateral Murder” video, Afghan and Iraq War Logs, the US State Embassy cables, etc.
—Former CIA agent John Kiriakou, who publicly spoke about the Bush administration’s torture program and was indicted and charged this year for allegedly releasing the names of intelligence operatives
Jonathan Alter, author of The Promise, has written about how Obama is no fan of “leaks”:
Obama had one pet peeve that could make him lose his cool. It was a common source of anger for presidents: leaks. Complaints about loose lips became a constant theme of Obama’s early presidency. At his first Cabinet meeting he made a point of saying that he didn’t want to see his Cabinet “litigating” policy through the New York Times and the Washington Post. At a Blair House retreat for the Cabinet and senior staff at the end of July he devoted about a quarter of his comments to urging his people to keeping their disagreements within the family: “We should be having these debates on the inside, not the outside.” And during his twenty hours of deliberations over Afghanistan in the fall, he returned repeatedly to the theme. Naturally in Washington nearly every time he got upset about leaks it leaked.
For all his claims that he didn’t want yes-men around him, no one on his staff was brave enough to tell the president that obsessing over leaks was a colossal waste of time. (Aides should have recognized that the age-old problem in Washington isn’t managing leaks, but managing the president’s fury over them.) But it wouldn’t have mattered: leaks offended Obama’s sense of discipline and reminded him of everything he disliked about the capital. He was fearsome on the subject, which seemed to bring out his controlling nature to an even greater degree than usual…
As Canterbury says in her statement, the Obama administration has been responsible “aggressive prosecutions and certain post-WikiLeaks policies” have had a “chilling effect on would-be whistleblowers.” For example, Peter Van Buren, was essentially fired or forced out of the State Department for linking to a WikiLeaks cable in a blog post and publishing a tell-all book on the State Department’s Iraq reconstruction program, called the crackdown on whistleblowers “free speech hypocrisy.”
One senior Justice Department official told the Washingtonian, “We’re out for scalps,” when talking about prosecutions of “leakers.” The official even went so far as to suggest reporters, who talk to sources about classified information, are “putting themselves at risk of prosecution.”
FBI whistleblower Sibel Edmonds wrote in her book, Classified Woman:
…Unfortunately for me, Obama’s presidency was no cause to celebrate. Certainly he “looked and talked” better than his opponents, but that was where differences ended. I had dealt with Obama’s Senate office, and we as national security whistleblowers also had “tried” to work with his office—all to no avail. He was as anti-whistleblower, anti-transparency and anti-accountability as they come, along with many of his colleagues there, including Senator Hillary Rodham Clinton…
All of which has served to create a political climate that enables not only a war on WikiLeaks but also a war on the free flow of information. From May to August, Congress members publicly mounted a bipartisan offensive against “leaks” by President Barack Obama’s administration on Obama’s “kill list,” cyber warfare against Iran and a CIA underwear bomb plot sting operation in Yemen. House Republicans expressed support for jailing journalists if they didn’t comply with a political witch hunt for “leakers.” And the Senate Intelligence Committee chaired by Sen. Dianne Feinstein put forward anti-leaks proposals that preserved the leak powers of Congress but aimed to impose tight restrictions on low-level intelligence employees and staffers in the White House and other Executive Branch agencies.
The directive is a gutless yet astute political maneuver. Not willing to confront Congress on its failure to legislatively provide rights to whistleblowers, the White House has put forward this directive. It can be used by his re-election campaign to undermine the notion that Obama has ever been at war with whistleblowers. It can recast history. But, the truth is there is a culture of secrecy that pervades intelligence agencies and government is filled with sycophantic bureaucrats indoctrinated to serve the national security state.
The toothless nature of the directive is no accident or mistake. Congress failing to pass whistleblower protection that afforded protections to intelligence employees was coordinated with the White House.
Obama has no intention of challenging the secrecy culture in intelligence agencies that creates a work environment that enables corruption. These agencies do not want whistleblowers talking anymore than Obama wants people from his White House talking. The agencies and Obama do not want to have to address corruption because it interrupts the continuity of government. And so, all they can put forward is a cosmetic measure that is purely a window-dressing effort designed to make it look like the issue has been properly addressed.