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Obama Makes Commitments to Protect Whistleblowers?

Our Tabke Box

Cross posted from Open The Government.

On December 8, the Obama Administration committed to taking steps over the next two years with the stated goal of strengthening and expanding protections for federal whistleblowers in its second National Action Plan (NAP) for the Open Government Partnership (OGP). Commitments include: mandating participation in the Office of Special Counsel’s Whistleblower Certification Program; furthering implementation of the Presidential Policy Directive 19 (PPD-19), which extends protections to whistleblowers with access to classified material; advocating for expansion of whistleblower protections through legislation; and exploring executive authority to extend those protections if Congress does not act.

The backdrop for these commitments is a contradictory mélange for whistleblowers under President Obama. On one hand, President Obama has done more than any other president to advance affirmative legal protections for whistleblowers. He has made excellent appointments to the key agencies charged with enforcing whistleblower protections. On the other hand, this Administration has prosecuted more federal employees under the Espionage Act for disclosing government information than all presidencies combined. This heavy-handed attempt to end leaks of classified information has instead produced one of the largest, and likely the most important leak in American history.

National Security Administration (NSA) contractor whistleblower Edward Snowden and other intelligence community contractors did not have any protections under the law for legally disclosing the very likely unconstitutional acts of the NSA.

We urged the administration to at least ensure that the policy directive to protect whistleblowers with access to classified information (PPD-19) covers contractors—and now there is a commitment to do so. That is appreciated. We also welcome the commitment to ensure “strong, independent due process procedures,” though this may not be possible under the current policy, given that the process available is not independent of the intelligence community (IC) itself. There aren’t protections for disclosures outside the IC, except for the congressional intelligence committee leadership, who have been shown to be really inside the IC, having not conducted independent oversight over NSA domestic spying. So, the only options for protected disclosure are to the ones ultimately responsible for the wrongdoing, or their congressional lapdogs. Like the President’s Review Group on Intelligence and Communications Technologies, we strongly recommend a protected path of disclosure to entities independent of the IC.

In addition, the only option for a review of claims of retaliation is with the Inspectors General of the intelligence community. So, while the agencies may craft them, the legitimacy of “strong, independent due process procedures” in practice rests with the IC Inspectors General—not the White House. Inspectors General are supposed to be independent from the agencies they watchdog, but also still technically report to the head of the agency. We’ve found that independence varies wildly across the IG community. It really depends a lot on whether or not that IG seeks public and congressional support, which has rarely been the case in the IC.  

So, can others like Snowden with important revelations to share now expect protections for making legal disclosures? Maybe, but not likely. Anyway, shhhhhh, it’s a secret.

We may never know if they succeed, since the PPD-19 implementation has been done in secret and there is no commitment to make the policies and procedures public (though we asked them to do so). How will we measure success? Perhaps the commitment to ensure “awareness of protections” will lead the way to more transparency in this secret open government commitment. It took several months of urging, but the White House finally made the text of PPD-19 public. Hopefully, it won’t be long before all of the agency policies and procedures mandated by PPD-19 are made public as well.

Another commitment provides an opportunity for a stronger, more independent system of whistleblowing for national security and intelligence communities: the commitment to advocate for legislation to expand whistleblower protections. The Administration was extremely helpful in the passage of the landmark Whistleblower Protection Enhancement Act—a commitment from the first OGP NAP. Though the new NAP is short on specifics, we hope the Administration will help push for legislation that will at least protect all disclosures of classified information to any Member of Congress, as well as to independent entities such as the Office of Special Counsel and the Privacy and Civil Liberties Board. These reforms could also be done with executive action (fulfilling another commitment!). However, legislation is needed to ensure authentic independent review of claims of retaliation by the Office of Special Counsel and the Merit Systems Protection Board of claims of retaliation.

Of course, we also have more ideas for closing gaps in the law. For example, much more must be done to restore protections to those who hold national security sensitive positions; strengthen military whistleblower protections; and improve the broken FBI whistleblower system.

Hopefully, the new NAP will yield more openness and real results for a stronger culture of accountability in government. The commitment to mandate certification of agency compliance with whistleblower laws is a good, if modest step in that direction (one that we had recommended). POGO and our partners look forward to continuing to work with the Obama Administration and the public to make the most of this opportunity for reform.

Whistleblower Commitments from National Action Plan

  • Strengthen and Expand Whistleblower Protections for Government Personnel: Employees with the courage to report wrongdoing through appropriate, legally authorized channels are a government’s best defense against waste, fraud, and abuse. Federal law prohibits retaliation against most government employees and contractors who act as whistleblowers, and those protections were strengthened by recent legislation and Executive action. However, some who work for the Government still have diminished statutory protections. The Government must also ensure that Federal employees know their rights. Therefore, the Administration will:
  • Mandate Participation in the Office of Special Counsel Whistleblower Certification Program. To ensure that Federal employees understand their whistleblower rights and how to make protected disclosures, the Administration will require covered agencies to complete the U.S. Office of Special Counsel’s program to certify compliance with the Whistleblower Protection Act’s notification requirements.
  •  Implement the Presidential Directive on Protecting Whistleblowers. The U.S. Government will continue to work to implement the President’s October 2012 Policy Directive on Protecting Whistleblowers with Access to Classified Information (PPD-19), including by ensuring strong, independent due process procedures; awareness of protections; and agency understanding of the protections available to government contractors under the directive.
  • Advocate for Legislation to Expand Whistleblower Protections. With the Administration’s support, Congress recently enacted legislation to strengthen whistleblower protections for most Federal Government employees and contractors, but there are still gaps in statutory protections available to certain government employees and contractors. The Administration will continue to work with Congress to enact appropriate legislation to protect these individuals.
  • Explore Executive Authority to Expand Whistleblower Protections if Congress Does Not Act. While statutory protections are preferable, the Administration will explore additional options for utilizing Executive authority to further strengthen and expand whistleblower protections if Congress fails to act further.

 

By: Angela Canterbury
Director of Public Policy, POGO

angela canterbury Angela Canterbury is Director of Public Policy for the Project On Government Oversight.

Topics: Whistleblower Protections

Related Content: Intelligence

Authors: Angela Canterbury

Submitted by Isaac Decatur at: June 20, 2014
With the knowledge of the blacklist becoming known as of November 10, 2004. Director, Carlton Hadden, EEOC OFO, made decisions on cases of Mr. Isaac Decatur, Mr. Morsie Porter, and Mr. Ralph Saunders, after that date knowing about the blacklist. Is this not erroneous information? How long will the Obama administration continue to do nothing. ZERO. The Department of Veterans Affairs Agency, New Orleans, Louisiana needs to be investigated immediately. Along with Carlton Hadden, EEOC OFO Director, Todd Cox, Office of Communications Legislative Affairs, Yolanda Saunders-Jackson, former EEO Manager, New Orleans, LA. VA. OEDCA, Director, Maxanne Witkin, Assistance General Counsel, Deborah McCallum, and other who had knowledge of the affidavit of Al Hunt, III submitted to the EEOC November 10, 2004. They only covered it up and swept it under the rug. INTENTIONALLY FAILURIE TO ENFORCE FEDERAL EEO LAWS. Is this the way AMERICA treats it's VETERANS. POGO we are calling on you to investigate this wrong doing of all individuals named.
Submitted by Morsie Porter at: April 23, 2014
The following shows how management’s articulated reasons are unworthy of belief, that management has a policy or practice disfavoring the complaint’s protected class, that management has discriminated against the complaints in the past, and that management has traditionally reacted improperly to legitimate civil rights activities. In the case of Ralph Saunders v. Secretary, Department of Veterans Affairs VA Case No. 200L06292004100828 page 12 Pretext states; The complainant introduced sufficient evidence to establish the following: (1) his supervisor harbored retaliatory intent: (2) management’s stated reasons for the suspension lack credibility: (3) his supervisors have been found to have discriminated against him at other times. Retaliatory Intent: We credit the evidence from the complainant’s former supervisor, Mr. Al Hunt, that the complainant was targeted for particular scrutiny and treatment because of his prior EEO activity. As in our Final Action of April 11, 2005 ( in which we adopted the decision of the administration judge Christopher Jude in VA Case Nos. 200L06292003101173, 200L06292003104390, and 200L06292004101651), we credit the finding of the EEOC administrative judge that Mr. Al Hunt is worthy of belief. Based on his affidavit ( the blacklist), and on the testimony he provided in the EEO hearing of February 18, 2005, we find that the evidence of record shows that Ms. Cassandra Holiday, Ms. Jeanette Butler, and Ms. Linda Cosey were the RMO's “abusing the ruled” and retaliating against the complainant for his protected EEO activity. The conclusion of this case was as follows: We find that the complainant was discriminated against based on reprisal. Note: In Mr. Al Hunt’s affidavit Mr. Morsie Porter, Isaac Decatur (CASE NO. 200L-0629-2005103156) and four others were named on the blacklist. Compare from the U.S. EEOC OFO Washington: Morsie Porter v. R. James Nicholson, Secretary, Department of Veterans Affairs Agency, Request No. 0520080275, Appeal No. 0120073447, Agency No. 200L06292004101651. Mr. Porter was assigned this agency number two years after Mr. Saunders’ case was settled. Based on this information why was Mr. Porter’s case awarded to the agency? How can we get any kind of damage award with this type of misinformation? With two people having the same case number who was judged on what information? With the affidavit of Mr. Al Hunt information on the blacklist had been described. This evidence became public November 2004. From this point on the blacklisted VA employees Mr. Morsie Porter, Mr. Isaac Decatur and four others had problems generated by management. We the blacklisted employees have been demanding a complete investigation since this information had become public. Will the president’s National Action Plan (NAP) for the Open Government Partnership (OGP) be applied to our cases? We the blacklisted employees are covered by the No Fear Act of 2002 for whistle blowing protection. NO JUSTICE, NO PEACE.

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