The United States Senate passed an intelligence authorization bill that, while inadequate and flawed, contains sections which address protections for intelligence agency employees who become whistleblowers.
On the floor of the Senate, Democratic Senator Ron Wyden of Oregon, who worked to get these provisions included in the bill, celebrated the expansion of statutory protection for potential whistleblowers. He also criticized a directive signed by Director of National Intelligence (DNI) James Clapper that broadly prohibits employees from “unauthorized” contact with the media.
Without naming any specific whistleblowers or journalists, Wyden stated, ”A lot of the progress that we have seen recently would not have happened without whistleblowers and without some of the intelligence agency employees who were willing to risk their very career to draw attention to real and serious problems. And I also want to make note of the fact that there were journalists—journalists who worked hard to report the facts responsibly and ensure and inform public debate that is so essential to our democracy.”
He said that there was a section of the intelligence authorization bill that “strengthens the ability” of whistleblowers to come forward.
“It prohibits retaliation against intelligence whistleblowers who report misconduct using approved channels and it includes whistleblowers who have their security clearance unjustifiably revoked. Establishing these protections in statute in my view is an important advance forward,” Wyden declared.
He explained that current laws and regulations include “channels” for blowing the whistle, which make it possible to alert an “oversight entity” so they will hopefully do something with the information. However, there are some key problems.
…[U]nfortunately reporting misconduct by your colleagues or by your agency doesn’t always work out so well and that’s why rocking the boat and reporting misconduct can sometimes be hazardous for an individual’s career. And if a government employee thinks about blowing the whistle on possible misconduct and can see that their supervisor or someone in their chain of command is condoning or participating in that misconduct, the employee is rightly going to be concerned about possible retaliation…
Employees become concerned that they will not get a promotion or will lose their security clearance. The sections in the intelligence authorization bill are intended to prohibit retaliation of employees for “lawful disclosures” of information to the DNI, the Inspector General of the intelligence community, “the head of an employing agency, the appropriate inspector general of an employing agency, a congressional intelligence committee or a member of a congressional intelligence committee.”
“Lawful disclosures” encompass any information an employee “reasonably believes” is evidence of a “violation of any federal law, rule or regulation” or evidence of “mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.”
Yet there is one fundamental flaw, which Wyden neglected to address in his remarks. The part of this section on enforcement states, “The President shall provide for the enforcement of this section.” In other words, there is no enforcement mechanism unless President Barack Obama develops a means for enforcing protections.
There also is troubling broad language in the section on “corrective action,” which relates to determining whether the revoking of a security clearance was retaliation or not. A disclosure is a “contributing factor” to the decision “unless the agency demonstrates by a preponderance of the evidence that it would have taken the same action in the absence of such disclosure, giving the utmost deference to the agency’s assessment of the particular threat to the national security interests of the United States in the instant matter.”
Statutorily, and without any mechanism for any proceeding in any court, this gives the leadership of any agency a huge amount of discretion to make the case, including retroactively, that actions that appear to be retaliation were justifiable regardless of the disclosure of information.
On Clapper’s directive, which was signed on March 20, Wyden indicated, “I am troubled by how sweeping in nature this is. At the outset, this is supposed to prevent disclosures of genuinely sensitive information. That’s obviously an important goal,” but he added, “Don’t keep employees from being able to talk about non-classified matters.”
“The new policy makes it clear that intelligence agency employees can be punished for having contact with the media about intelligence-related information. Make no mistake about it that is so broad that it could cover unclassified information. It really doesn’t lay out any limits on this extraordinarily broad term that I have described,” Wyden said.
He asked, “Is an employee’s opinion about the scope of the NSA’s domestic surveillance activities ‘intelligence-related information’? Are publicly available assessments about developments in Syria or the Ukraine ‘intelligence-related’? This new directive doesn’t say that, but it certainly points in that direction.”
Even more alarming to Wyden is the section on media. “If you read further down into this new policy and review the definition of the word media. It includes any person or any entity engaged in the collection, production or dissemination to the public of information in any form related to topics of national security which includes print, broadcast, film and the internet,” he said.
Wyden noted that it went “well beyond professional news gatherers to include anyone who uses the internet to disseminate any information at all related to national security topics.”
“So, if you’re an employee of an intelligence agency and if you have a family member who likes to post or retweet articles about national security, suddenly having a conversation with that family member about important issues like NSA surveillance or the war in Afghanistan could lead to you getting punished for having unauthorized contact with the media, which this directive says ‘will be handled in the same manner as a security violation regardless of whether or not any classified information is disclosed,’” Wyden argued.
He recalled how he had led opposition to an “overly broad anti-leaks bill” that was passed by the Senate intelligence committee in 2012. He managed to put a hold on it and prevent many of the worst parts of the legislation from passing.
One of the provisions in that bill, which failed to pass, was similar to Clapper’s directive. It prohibited “nearly all intelligence agency employees” from giving briefings to the media, “unless those employees gave their names and provided the briefing on the record.”
“It seems to me that authorized, unclassified background briefings from intelligence agency analysts and experts are a useful way to help inform the press and the public about a wide variety of issues, and there will often be good reasons to withhold the full names of the experts giving these briefings,” Wyden said. “I have seen no evidence that making it harder for the intelligence agencies to provide these briefings would benefit national security in any way so I see no reason to limit the flow of information in this manner.”
Wyden argued that Congress members “often rely on the press to inform them about problems that congressional overseers have not discovered on their own.” He would not have found out about “serious government wrongdoing – such as the NSA’s warrantless wiretapping program, or the CIA’s coercive interrogation program” unless government employees had made disclosures to the press.
Before concluding his remarks, he noted there was much work to be done in expanding protections for intelligence agency whistleblowers.
There are very few US senators who will speak up about the need for whistleblower protections, especially for intelligence agency employees, however, there is no justifiable reason to praise statutory protections without pointing out the risks that remain for potential whistleblowers if one supports having meaningful whistleblower protections for intelligence agency employees in government.
When the Whistleblower Protection Enhancement Act (WPEA) was passed in 2012, the White House worked with members of Congress to have protections for intelligence agency employees removed.
Obama subsequently issued a directive that appeared to provide protections for intelligence agency whistleblowers, but it specifically stated that the directive was not intended to “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.”
Journalist Timothy Shorrock has reported that 70% of the government’s classified intelligence budget is spent on private contractors. There is nothing in the intelligence authorization bill or nothing in Wyden’s remarks that dealt with protections for intelligence agency contractors. (Note: Edward Snowden was a National Security Agency contractor, who has emphasized he lacked protections employees at NSA have.)
According to Government Accountability Project National Security and Human Rights Director Jesselyn Radack, who serves as one of Snowden’s attorneys, “The best way for the government to stop leaks is to enact meaningful and effective whistleblower protection.”
No safe channels happen to exist for national security or intelligence agency contractors. There also continues to be a huge lack of protection for employees at intelligence agencies. Something should be done or else it is a virtual guarantee that corruption will increase as employees stay silent or major leaks to media will keep taking place.