President Obama Issues Landmark Directive for National Security and Intelligence Community Whistleblowers
Statement of Angela Canterbury, Director of Public Policy
Today, President Obama picked up the whistleblower protections Congress had left by the wayside, finally providing intelligence community workers with specific free speech rights and some protections against retaliation when they legally report waste, fraud, and abuse.
This unprecedented Presidential Policy Directive is leveled at the endemic culture of secrecy in the intelligence community (IC) and the dearth of accountability it fosters. The directive prohibits retaliation for protected disclosures by IC employees; prohibits retaliatory actions related to security clearances and eligibility for access to classified information and directs agencies to create a review process for related reprisal claims; mandates that each intelligence agency create a review process for claims of retaliation consistent with the policies and procedures in the Whistleblower Protection Act (WPA); provides significant remedies where retaliation is substantiated, including reinstatement and compensatory damages; and creates a review board of Inspectors General (IGs) where IC whistleblowers can appeal agency decisions.
From the beginning of the Obama Administration, POGO and our allies have been calling for executive action to better protect whistleblowers. While we have been heartened by certain commitments to strengthen whistleblower protections made by the President—from his campaign promises, to his support for reform legislation, to his recent commitments under the international Open Government Partnership—we also have been critical of this Administration’s prosecutions of so-called leakers under the Espionage Act. We have raised concerns about the possible infringement of rights and the chilling effect on would-be whistleblowers of the aggressive prosecutions and certain post-WikiLeaks policies. We have repeatedly urged that anti-leak efforts include authentic protections for those who make lawful disclosures of wrongdoing in the intelligence community. With the stroke of his pen today, President Obama did just that and took unparalleled action to protect whistleblowers, for which we are truly gratified and grateful.
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.
In addition to ensuring the proper implementation of this directive, there is other unfinished business. On September 28, the House passed the Whistleblower Protection Enhancement Act (S. 743, as amended by the House) by unanimous consent, after having stripped the provisions related to security clearances, the intelligence community, jury trial access, and contractor protections. Even without these reforms, we urge the Senate to take up the bill upon their return from the election recess and finally upgrade protections for civil servants outside the IC.
We also hope Congress will eventually statutorily enact the President’s new IC and national security whistleblower protections, but go further and specifically protect disclosures to Congress without condition and disclosures from federal contractor employees. Also, there are some key reforms that were beyond the scope of executive action. For example, the President’s directive provides some review of claims of retaliation involving eligibility for access to classified information determinations. However, it did not fully restore the law for the hundreds of thousands of civil servants who recently had their rights stripped by a foolhardy decision by the Federal Circuit, since it was considered to be likely beyond executive authority. In Berry v. Conyers and Northover the Court remarkably determined that employees whose positions do not require access to classified information, but which may at some point require it, and therefore have been labeled “sensitive” no longer should have access to the merit system. Congress must legislate to overturn the wrongheaded over-reach of the Federal Circuit and fully restore the law that protects these federal workers from prohibited personnel practices, including retaliation for whistleblowing, and to prevent agencies from arbitrarily labeling away the rights of civil servants.
Meanwhile, the President deserves tremendous credit for going above and beyond his commitments to support legislation and explore ways to better protect whistleblowers. When implemented properly, this policy should provide for more balance between guarding precious rights and legitimate secrets while ensuring more disclosures of wrongdoing necessary for a more accountable IC. Today, President Obama delivered on protections for whistleblowers and taxpayers.
The Presidential Policy Directive on Whistleblower Protections:
- Specifically prohibits retaliation for a protected disclosure by an IC employee;
- Prohibits retaliatory actions affecting security clearances and eligibility for access to classified information for any federal employee;
- Protects disclosures—including those made to a supervisor in the chain of command, the IG of the agency or IC, or a designated employee—which the whistleblower reasonably believes evidences a violation of any law, rule or regulation, gross waste or mismanagement, abuse of authority, or substantial and specific danger to public health or safety, or which complies with the exercising of existing rights;
- Protects the exercising of existing rights or participating in an investigation or proceeding related to a potential violation of the directive, or providing information to or cooperating with an IG;
- Protects IC employee communications and limited classified disclosures to an IG and Congress described in the Inspector General Act of 1978, the Central Intelligence Agency Act of 1949, and the National Security Act of 1947;
- Defines a broad range of personnel actions, with certain exclusions;
- Requires IC agencies to create within 270 days a review process for retaliation claims that is consistent with the policies and procedures in the WPA and includes review by the agency IG;
- Mandates that each agency with possession of classified information establish a process for review by the agency IG of retaliation claims related to security clearances and eligibility for access to classified information;
- Establishes significant available remedies which include, but are not limited to, reinstatement, attorney’s fees, back pay and related benefits, travel expenses, and compensatory damages;
- Gives the IC IG the authority to convene an External Review Panel to include two other IGs to review agency determinations in claims of retaliation, including security clearance and eligibility for access to classified information, within 180 days, and to make recommendations to the agency heads for corrective action for substantiated claims;
- Directs agencies to cooperate and carefully consider actions recommended by the agency or IC IG, and requires notification within 90 days to the IC IG and the DNI of actions taken;
- Directs the DNI to notify the President if the head of the agency fails to send the notification on actions taken;
- Mandates annual reporting by the IC IG on determinations, recommendations, and agency responses to the DNI and Congress.
- Requires a report by the Attorney General to the President on the implementation of FBI whistleblower protections and recommendations for increasing its effectiveness and ensuring appropriate enforcement (in consultation with the Office of Special Counsel and FBI employees);
- Directs the DNI to consult with the public and other agency heads to issue policies and procedures to make all IC employees aware of the protections and review processes available; and,
- Importantly, stipulates that nothing in this directive will limit existing rights under the WPA.